US v. Ricky Simpson, No. 15-4115 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4115 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICKY NELSON SIMPSON, a/k/a Bossman, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever, III, Chief District Judge. (2:14-cr-00007-D-1) Submitted: October 20, 2015 Decided: October 22, 2015 Before MOTZ, KEENAN, and THACKER, Circuit Judges. Affirmed in part and dismissed in part by unpublished per curiam opinion. Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ricky Nelson Simpson appeals the 96-month, below-Guidelines sentence imposed after he pled guilty, pursuant to a plea agreement, to one count of conspiracy to distribute and possess with intent to distribute 28 grams or more of cocaine base and 500 grams or more of §§ 841(b)(1)(B), 846 cocaine, (2012). in violation Counsel 21 U.S.C. filed has of a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), in which she challenges the substantive reasonableness of Simpson’s sentence, but recognizes that Simpson waived his right to appeal his sentence in his plea agreement. supplemental brief asserting Simpson has filed a pro se that counsel was ineffective, thereby resulting in the denial of his due process rights. The Government has filed a motion to dismiss the appeal based on the appellate waiver in Simpson’s plea agreement. We affirm in part, and dismiss in part. A defendant may waive the right to appeal if that waiver is knowing and intelligent. See United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent review of the record that supports knowingly waived sentence. Thus, the his we conclusion right conclude to appeal that enforceable. 2 Simpson the voluntarily and conviction and his waiver is valid and However, even a valid waiver does not waive all appellate claims. Specifically, a valid appeal waiver does not preclude a challenge to statutory a sentence maximum or on is the ground based that on a it exceeds the constitutionally impermissible factor such as race, arises from the denial of a motion to withdraw a guilty plea based on ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth Amendment right to counsel in proceedings following the guilty plea. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). Moreover, the appellate waiver in Simpson’s plea agreement did not waive: (1) any sentencing challenges he may have if his sentence was in excess of the applicable advisory Guidelines range established at sentencing; or (2) ineffective assistance of counsel or prosecutorial misconduct claims known to Simpson at the time of his guilty plea. not Simpson’s sentence is below the Guidelines range established at sentencing and, thus, counsel’s appellate waiver. claim is squarely foreclosed by the Accordingly, we grant the Government’s motion to dismiss the appeal, in part. 3 In accordance with Anders, we have reviewed the record for any potentially meritorious, unwaived issues, * and we have found none. We therefore dismiss the appeal in part and affirm in part. This writing, of court his requires right to that counsel petition the United States for further review. inform Supreme Simpson, Court of in the If Simpson requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Simpson. oral argument adequately because presented in the the facts and materials We dispense with legal contentions before this court are and argument would not aid in the decisional process. AFFIRMED IN PART; DISMISSED IN PART * To the extent Simpson suggests that counsel provided ineffective assistance, we conclude that ineffective assistance does not conclusively appear on the record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). 4
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