United States v. Alexander , 166 F. App'x 822 ( 2006 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 06a0111n.06
    Filed: February 13, 2006
    04-4548
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                     )
    )
    Plaintiff-Appellee,                    )
    )
    v.                                            )   ON APPEAL FROM THE UNITED
    )   STATES DISTRICT COURT FOR THE
    THEODORE M. ALEXANDER, JR.,                   )   NORTHERN DISTRICT OF OHIO
    )
    Defendant-Appellant.                   )
    Before: NELSON, DAUGHTREY, and ROGERS, Circuit Judges.
    PER CURIAM.           The defendant, Theodore Alexander, appeals his conviction
    following the entry of a guilty plea to one count of conspiracy to distribute and seven counts
    of possession with intent to distribute various quantities of crack cocaine.         He was
    sentenced to 155 months’ incarceration, to be served concurrently with another federal
    sentence that he had received in an unrelated case. Alexander now appeals both his
    conviction and his sentence, raising a claim of ineffective assistance of counsel and
    contending that his case should be remanded for resentencing under United States v.
    Booker, 
    543 U.S. 220
    (2005).
    The defendant’s ineffective-assistance claim is premised on counsel’s failure to
    challenge as a violation of due process the 22-month delay between the prior federal
    04-4548
    United States v. Alexander
    prosecution and the indictment in this case, given that all of the offenses occurred during
    the same general time period. The government argues in response that this is the unusual
    case in which it is clear from the existing record that the defendant suffered no prejudice
    from the delay, because the sentences in both cases were run concurrently and the
    defendant was credited with the time he had served against both sentences. Nevertheless,
    we believe that it would be prudent to follow our usual policy of reserving questions
    regarding ineffective assistance for review under 28 U.S.C. § 2255, pursuant to which a
    motion to vacate sentence may be filed in the district court within one year of the date this
    appeal becomes final. At that time, a more complete record of the events giving rise to the
    claim can be developed. We therefore decline to consider the defendant’s claim that he
    received ineffective assistance of counsel.
    Nor are we able to review the propriety of the defendant’s sentence in this appeal,
    because of the plea agreement that the defendant executed with the government. In that
    agreement the defendant explicitly relinquished the right to appeal his sentence unless it
    was based on an “upward departure from [the] guideline range established in th[e]
    agreement,” which was 151-188 months. The only other claims that the agreement
    excepts from the waiver of appeal are “claims of ineffective assistance of counsel or
    prosecutorial misconduct.” We therefore hold, under the authority of United States v.
    Bradley, 
    400 F.3d 459
    , 465-66 (6th Cir. 2005), that the defendant has waived his right to
    challenge his sentence under Booker.
    -2-
    04-4548
    United States v. Alexander
    For the reasons set out above, the appeal in this case is DISMISSED.
    -3-
    

Document Info

Docket Number: 04-4548

Citation Numbers: 166 F. App'x 822

Filed Date: 2/13/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023