United States v. David Mero ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID MERO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Mark S. Davis, Chief District Judge. (4:17-cr-00013-MSD-RJK-1)
Submitted: February 28, 2019 Decided: March 7, 2019
Before WYNN and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Laura P. Tayman, LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellant.
G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Kaitlin G. Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, David Mero pled guilty to conspiracy to
commit bank and mail fraud, in violation of 18 U.S.C. § 1349 (2012), and aggravated
identity theft, in violation of 18 U.S.C. § 1028A (2012). The district court sentenced
Mero to 116 months of imprisonment, and he now appeals. In his opening brief, Mero
asserts that (1) he did not knowingly and voluntarily waive his right to appeal; (2) his
Sixth Amendment rights were violated when federal agents interviewed him while he was
in custody in Texas on related state charges; (3) his sentence is procedurally and
substantively unreasonable because the district court did not sufficiently consider his
nonfrivolous arguments for a downward departure; and (4) he received ineffective
assistance of counsel because his trial counsel did not file a motion to suppress certain
cell-site location information (“CSLI”) evidence that the Government obtained without a
warrant. The Government filed a response brief, arguing that the appeal is barred by the
appellate waiver included in Mero’s plea agreement. We dismiss the appeal.
Mero waived the right to appeal his “conviction and any sentence within the
statutory maximum . . . on any ground whatsoever other than an ineffective assistance of
counsel claim that is cognizable on direct appeal.” (J.A. 607). * Upon review of the plea
agreement, the transcript of the Fed. R. Crim. P. 11 hearing, and the transcript of the
sentencing hearing, we conclude that Mero’s waiver of appellate rights is knowing and
voluntary. We further conclude that Mero’s nonineffective-assistance-of-counsel-related
*
“J.A.” refers to the joint appendix filed by the parties in this appeal.
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Sixth Amendment claim and his challenge to his within-Guidelines sentence fall squarely
within his valid waiver of appellate rights. Mero did not, however, waive the right to
appeal a claim of “ineffective assistance of counsel . . . that is cognizable on direct
appeal.” (J.A. 607).
We do not consider ineffective assistance claims on direct appeal “[u]nless an
attorney’s ineffectiveness conclusively appears on the face of the record.” United States
v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). To succeed on an ineffective assistance of
counsel claim, a “defendant must show that counsel’s performance was [constitutionally]
deficient” and “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To satisfy the performance prong, “the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. The defendant satisfies the prejudice prong if he can
establish “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. In the guilty plea context,
Mero demonstrates prejudice by showing “a reasonable probability that, but for counsel’s
errors, he would . . . have insisted on going to trial” rather than pleading guilty and,
further, that this decision to go to trial would have been objectively rational. See United
States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012).
Mero argues that the Government obtained CSLI without a warrant, in violation of
the Fourth Amendment, and that trial counsel was constitutionally ineffective for not
filing a motion to suppress. At the time trial counsel acted, a warrant was not required in
this circuit to obtain CSLI from a third-party service provider. See United States v.
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Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc), abrogated by Carpenter v. United
States, 138 S. Ct. 2206 (2018). Nevertheless, Mero argues that trial counsel should have
filed a motion to suppress based on a circuit split on the issue and the Supreme Court’s
grant of certiorari in Carpenter. Even accepting Mero’s contention that a motion to
suppress, based on the circuit split, would have been “appropriate” in order to preserve
the issue for appeal (Appellant’s Br. at 28), the record does not conclusively show that
counsel was ineffective for not doing so. See, e.g., United States v. McNamara, 74 F.3d
514, 516 (4th Cir. 1996) (concluding that trial counsel was not ineffective for failing to
preserve issue on which Supreme Court had granted certiorari). Because the record does
not conclusively establish ineffective assistance of counsel, we dismiss the appeal of
Mero’s conviction and sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED
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