US v. Bryant Reed, No. 09-4934 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4934 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYANT WILLIAM REED, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00276-BO-1) Submitted: June 1, 2010 Decided: July 26, 2010 Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, dismissed in part by unpublished per curiam opinion. Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. Anne Margaret Hayes, William Miller Gilmore, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bryant William Reed pled guilty, pursuant to a plea agreement, to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951, 2 (2006); using and carrying a firearm during violation of and 18 in relation U.S.C. to § 924(c) a crime (2006); of and violence, in possession of ammunition after having been convicted of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g) (2006). a downward Prior to sentencing, the Government moved for departure Manual § 5K1.1 (2008). total of 260 months pursuant to U.S. Sentencing Guidelines The district court sentenced Reed to a of imprisonment, which was below the Guidelines range. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which she states that there are no meritorious issues for appeal, but questions whether the sentence is procedurally unreasonable because the district court failed to adequately explain how the sentence provided Reed with individualized sentencing based on accurate facts. In his pro se supplemental brief, Reed asserts that counsel was ineffective and that he did not commit a robbery and is not guilty of the § 924(c) charge, Government has but moved pled to guilty dismiss on counsel s Reed s appeal waiver of appellate rights in his plea agreement. 2 advice. based The upon a This court reviews the validity of a waiver de novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a waiver of appellate rights if the waiver is valid and the issue being appealed is covered by the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A waiver is valid if the defendant s agreement to the waiver was United States v. Marin, 961 F.2d 493, knowing and voluntary. 496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). To determine intelligent, this circumstances, whether court including a waiver examines the the experience is knowing totality and conduct of of and the the accused, as well as the accused s educational background and familiarity with the terms of the plea agreement. United States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks omitted). Generally, if a district court fully questions a defendant regarding the waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy, the waiver is valid. Wessells, 936 F.2d at 167-68. In this case, Reed does not assert that his waiver was not voluntary, and our review of the record leads us to conclude that Reed s waiver of his right to appeal was preclude waiver knowing any does review not, and voluntary and of potential sentencing however, include 3 a should waiver be enforced error. of his to Reed s right to appeal his conviction, or to assert claims of ineffective assistance of counsel. Our review of the record leads us to conclude that the claims that can be discerned from Reed s pro se supplemental brief do not entitle him to relief. To the extent he claims ineffective assistance of counsel, such claims are generally not cognizable on direct appeal. United States v. King, 119 F.3d 290, Rather, 295 (4th Cir. 1997). to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). exists when assistance. the record conclusively not conclusively deficient. innocent To of contradicted signature establishes ineffective United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. does An exception on the the by show extent § 924(c) his the that that counsel s Reed charge, claims performance he his in the plea agreement, and his is claim statements plea In this case, the record is was actually squarely hearing, his allocution at sentencing. Accordingly, we deny the Government s dismiss in part and affirm Reed s conviction. motion to We grant the motion to dismiss with regard to any potential sentencing error that may be revealed by our review pursuant to Anders. 4 In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal that are not encompassed by the appeal waiver. This court requires that counsel inform Reed, in writing, of the right to petition the Supreme Court of the United States for further review. If Reed requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Reed. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART, AND DISMISSED IN PART 5
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