US v. Victor Ellerbee, No. 08-4593 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4593 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR STEWART ELLERBEE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:07-cr-00326-D-1) Submitted: October 23, 2008 Before WILKINSON and Senior Circuit Judge. TRAXLER, Decided: Circuit November 14, 2008 Judges, and HAMILTON, Dismissed in part; affirmed in part by unpublished per curiam opinion. James B. Craven, III, Durham, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victor Ellerbee after pleading guilty sentence Stewart violation of 18 U.S.C. appeals to § 2113(a), from armed (d) his bank 228-month robbery, (2000). On in appeal, Ellerbee contends the district court erred in designating him as a career offender and that he received ineffective assistance of counsel. 1 dismiss In response, the Government has filed a motion to Ellerbee s appeal, asserting that pursuant to the appellate waiver contained in his plea agreement, there is no basis to challenge the sentence imposed. contends there is no evidence in the The Government also record indicating that Ellerbee s attorney provided ineffective assistance. Pursuant to a plea agreement, a defendant may waive his appellate rights under 18 U.S.C. § 3742 (2000). States v. upheld Wiggins, as 905 voluntarily F.2d and 51, 53 (4th intelligently Cir. 1990) made). United (waiver Whether a defendant has waived his right to appeal is an issue of law United States v. Marin, 961 F.2d subject to de novo review. 493, 496 (4th Cir. 1992). specific issue if the A waiver will preclude appeal of a record establishes 1 that the waiver is Ellerbee has also filed a pro se supplemental brief in which he claims his trial attorney committed fraud and asks this court to review his sentence. 2 valid and that the issue is within the scope of that waiver. United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). Ellerbee contends that his criminal history did not justify designation as a career offender, as two of his prior offenses should not have been considered separately under U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). However, this claim is squarely within the scope of the appellate waiver, as Ellerbee waived his right to appeal his sentence, including any issues that relate Guideline range. a sentence Guidelines the establishment of the advisory See United States v. Blick, 408 F.3d 162, 172-73 (4th Cir. 2005). appeal to range, While Ellerbee reserved the right to imposed his in sentence excess of 228 months of Guidelines range of 188 to 235 months. the was established within the Accordingly, Ellerbee s claim is barred by the appellate waiver. Ellerbee also assistance of counsel. contends that he received ineffective Ellerbee asserts that he would not have entered into his plea agreement had he known that he could have been classified as a career offender, as his trial attorney allegedly failed to discuss this matter with him and led him to believe that months. According to the terms of the plea agreement, claims of ineffective he would assistance appellate waiver. receive of a sentence counsel are between not 70 barred and by 87 the However, these claims should be raised in a 3 28 U.S.C. § 2255 (2000) motion rather than on direct appeal unless the record conclusively demonstrates ineffective assistance. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Such a claim cannot be fairly adjudicated on direct appeal when the appellant has not raised the issue before the district court and there is no statement from counsel on the record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because the existing record fails to conclusively support Ellerbee s assertions that counsel provided ineffective assistance, any such claim must be raised as part of a § 2255 motion rather than on direct appeal. 2 Accordingly, we grant the Government s dismiss as to Ellerbee s sentencing claims. motion to As for Ellerbee s claims that he received ineffective assistance of counsel, we deny the Government s motion to dismiss as to those claims, but nonetheless affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are 2 Ellerbee also asks this court to issue a new rule that appeal waivers do not serve the interests of justice and are not enforceable. However, we have consistently upheld the enforceability of appellate waivers. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (citation omitted). 4 adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 5
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