UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4754
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN KEITH MERCER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-03-77; CR-04-49)
Submitted: July 27, 2005 Decided: August 15, 2005
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kyle W. King, Asheville, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina;
Don D. Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Keith Mercer appeals his sentence following a
conviction by jury trial of one count of bank robbery, in violation
of 18 U.S.C. § 2113(a) (2000), and aiding and abetting bank
robbery, in violation of 18 U.S.C. § 2 (2000), in addition to a
subsequent guilty plea to two additional counts of bank robbery.
Deemed a career offender pursuant to United States Sentencing
Guidelines Manual § 4B1.1 (2003), Mercer was sentenced to 210
months’ imprisonment on each count of bank robbery, to be served
concurrently. He appeals, claiming his counsel was ineffective and
the district court’s imposition of his sentence was unreasonable.
This court will not consider Mercer’s ineffective
assistance of counsel claim on direct appeal “unless counsel’s
ineffectiveness conclusively appears on the record.” United
States v. James, 337 F.3d 387, 391 (4th Cir. 2003). If the record
does not conclusively establish ineffective assistance, a prisoner
must bring his claim in a 28 U.S.C. § 2255 (2000) motion. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Our review of
the record discloses no evidence that Mercer was subjected to
ineffective assistance of counsel. Therefore, we decline to
consider this claim on direct appeal.
In addition, Mercer signed a plea agreement in which he
waived his rights to contest his conviction and sentence on all
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bases except ineffective assistance of counsel, prosecutorial
misconduct, and sentencing guidelines issues inconsistent with the
plea agreement or of an unanticipated nature requiring the district
court to certify review by this court. Whether the defendant has
effectively waived his right to appeal is an issue we review de
novo. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
When the United States seeks to enforce a waiver provision, as it
does here, this court “will enforce the waiver to preclude a
defendant from appealing a specific issue if the record establishes
that the waiver is valid and that the issue being appealed is
within the scope of the waiver.” United States v. Blick, 408 F.3d
162, 170-73 (4th Cir. 2005).
Here, the court queried Mercer and his attorney with
regard to the plea agreement in general, and Mercer agreed to the
specific appellate waiver provision. In addition, both Mercer and
his attorney acknowledged they understood all the terms of the
agreement. The court found Mercer entered the plea “knowingly and
voluntarily,” understanding “the charges, potential penalties and
consequences of said plea.” Finally, we find that the meaning of
the plea agreement and the waiver provision is clear. We conclude,
therefore, the waiver is valid.
Furthermore, we find no merit to Mercer’s contention that
his sentence for the jury conviction, which was not a part of the
plea agreement and thus not included in the waiver provision, was
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unreasonable. We therefore affirm Mercer’s conviction and
sentence.
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
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