UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4613
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AARON LAMONT DAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-01-223-HO)
Submitted: March 8, 2004 Decided: March 16, 2004
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte, 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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Aaron Lamont Dawkins appeals his guilty plea conviction
for one count of attempted murder, in violation of 18 U.S.C. § 1113
(2000). Dawkins’ plea agreement waives all rights to appeal except
the right to appeal from an upward departure or an appeal based
upon grounds of ineffective assistance. Dawkins now seeks to
appeal his sentence. The Government has filed a motion to dismiss
the appeal.
Dawkins asserts that his trial counsel rendered
ineffective assistance, which resulted in an excessive sentence.
To succeed on a claim of ineffective assistance on direct appeal,
a defendant must show conclusively from the face of the record that
counsel provided ineffective representation. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To establish a
violation of the Sixth Amendment due to ineffective assistance of
counsel, Dawkins must demonstrate that (1) counsel’s representation
fell below an objective standard of reasonableness; and (2) there
is a reasonable probability that he was prejudiced by counsel’s
unprofessional errors. See Strickland v. Washington, 466 U.S. 668,
688, 694 (1984). We conclude that Dawkins has not shown
conclusively from the face of the record that counsel provided
ineffective representation. Richardson, 195 F.3d at 198. Instead,
he openly concedes that his trial counsel’s actions did not amount
to ineffective assistance. Accordingly, although we deny the
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motion to dismiss as to this claim, we affirm Dawkins’ conviction
and sentence as to this claim.
Next, Dawkins contends that the district court erred by
denying him a downward departure pursuant to U.S. Sentencing
Guidelines Manual §§ 5K2.0, 5K2.13 (2002). However, based on the
waiver contained in Dawkins’ plea agreement, he is precluded from
raising this claim on appeal. Moreover, the district court’s
decision not to depart from the sentencing guidelines is not
subject to appellate review, as the court clearly understood that
it had the authority to depart, but chose not to. See United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).
Accordingly, we grant the Government’s motion to dismiss this
claim.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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