United States v. Gary Easterling , 602 F. App'x 919 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY D. EASTERLING, a/k/a Gary Easterling, a/k/a Gary Smith,
a/k/a Chew, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:13-cr-00114-1)
Submitted: April 17, 2015 Decided: May 13, 2015
Before THACKER and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Stephen C. Leckar, KALBIAN HAGERTY LLP, Washington, D.C., for
Appellant. Joseph Franklin Adams, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary D. Easterling (“Appellant”) appeals his conviction and
the 135-month sentence imposed by the district court following
his guilty plea to possession with intent to distribute heroin
in violation of 21 U.S.C. § 841(a)(1) (2012). On appeal,
Appellant’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that he found no
meritorious grounds for appeal. Appellant filed a pro se
supplemental brief in which he alleged that trial counsel was
ineffective for failing to (1) adequately argue his Speedy Trial
Act claims; (2) reserve in the plea agreement his right to
appeal the district court’s denial of his motion to dismiss
based on alleged Speedy Trial Act violations; and (3) challenge
the Government’s standing to prosecute because of irregularities
in the grand jury proceedings before counsel advised him to
plead guilty.
The Government has filed a motion to dismiss Appellant’s
appeal based on the appellate waiver provision in the plea
agreement. Neither Appellant nor his counsel oppose the motion.
We grant the Government’s motion.
We review de novo a defendant’s waiver of appellate rights.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).
“A defendant may waive the right to appeal his conviction and
sentence so long as the waiver is knowing and voluntary.” Id.
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(internal quotation marks omitted). To determine whether the
waiver was knowing and voluntary, we look to the totality of the
circumstances. See United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). “Generally, if a district court questions a
defendant regarding the waiver of appellate rights during the
Rule 11 colloquy and the record indicates that the defendant
understood the full significance of the waiver, the waiver is
valid.” Copeland, 707 F.3d at 528 (internal quotation marks
omitted). Our review of the record leads us to conclude that,
under the totality of the circumstances, Appellant’s waiver of
appellate rights was knowing and voluntary, and the waiver
provision is therefore valid and enforceable.
We will enforce a valid waiver so long as “the issue
appealed is within the scope of the waiver.” Copeland, 707 F.3d
at 528 (internal quotation marks omitted). We conclude that
all of the issues raised on appeal, other than the ineffective
assistance claims, fall within the scope of the appellate waiver
provision, as Appellant exempted from the waiver provision only
the right to raise ineffective assistance claims on direct
appeal. Therefore, we grant the Government’s motion and dismiss
the appeal to the extent that Appellant challenges his
conviction and sentence on grounds other than ineffective
assistance of counsel.
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Turning to the ineffective assistance claims, we find that
the record does not conclusively demonstrate that counsel’s
representation was deficient. See United States v. Galloway,
749 F.3d 238, 241 (4th Cir.), cert. denied, 135 S. Ct. 215
(2014); see also Strickland v. Washington, 466 U.S. 668, 688,
694 (1984). Thus, Appellant’s claims must be brought in a
motion filed pursuant to 28 U.S.C. § 2255 (2012). See Galloway,
749 F.3d at 241. Accordingly, we decline to consider these
claims on direct appeal.
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. We therefore dismiss the appeal. This court
requires that counsel inform Appellant, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Appellant requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Appellant. 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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