UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN LENARD RANDOLPH,
Defendant - Appellant.
No. 04-4173
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY ALLEN LEMAY,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-02-105)
Submitted: September 13, 2005 Decided: October 26, 2005
Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Dismissed in part, affirmed in part, vacated in part, and remanded
by unpublished per curiam opinion.
Andrew B. Banzhoff, Asheville, North Carolina, for Appellant Brian
Lenard Randolph; Aaron E. Michel, Charlotte, North Carolina, for
Appellant Anthony Allen Lemay. Gretchen C. F. Shappert, United
States Attorney, Thomas R. Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Appellants Anthony Allen Lemay and Brian Lenard Randolph seek
relief from their convictions and sentences in the Western District
of North Carolina for conspiring to possess with intent to
distribute cocaine base, in contravention of 21 U.S.C. § 846.
Lemay makes five contentions on appeal: (1) that the district
court improperly enhanced his sentence based on facts not admitted
in connection with his guilty plea; (2) that the court
unconstitutionally required him to choose between his right to
counsel and his right to a trial; (3) that the court erred in
denying his request for the appointment of a new lawyer; (4) that
his counsel was constitutionally ineffective; and (5) that he is
entitled to a new trial because the transcript of the hearing on
his lawyer’s motion to withdraw is unavailable. Randolph, on the
other hand, makes two contentions in his separate appeal: (1) that
the charges against him should have been dismissed because 21
U.S.C. § 841, the statute governing the quantity of cocaine base
attributable to him, is facially unconstitutional; and (2) that the
court improperly enhanced his sentence based on facts not admitted
in connection with his guilty plea.
As explained below, we dismiss the first three claims raised
in Lemay’s appeal because they are barred by the appeal waiver
contained in his plea agreement, we dismiss Lemay’s fourth claim
because it does not conclusively appear from the record that his
3
counsel was ineffective, and we affirm on his fifth claim because
he cannot demonstrate that specific prejudice resulted from the
unavailability of the transcript of the hearing on his lawyer’s
motion to withdraw. We reject Randolph’s challenge to the
constitutionality of 21 U.S.C. § 841, but we vacate his sentence
and remand for further proceedings.
I.
On December 2, 2002, Lemay, Randolph, and others were charged
by the grand jury with participating in a drug conspiracy, in
violation of 21 U.S.C. § 846. As spelled out in the indictment,
the unlawful activity constituting the object of the conspiracy was
an effort to possess with intent to distribute fifty grams or more
of cocaine base, in violation of 21 U.S.C. § 841. The relevant
facts relating to the respective appeals of Lemay and Randolph
diverge, and we present those facts separately.
A.
On December 18, 2002, the district court appointed Reid G.
Brown to represent Lemay. On February 13, 2003, Brown filed a
motion to withdraw as Lemay’s counsel. In his motion, Brown
asserted that Lemay had been “abusive, insulting and would not
communicate with counsel,” that Lemay “disagreed with counsel’s
suggestions and recommendations,” and that Lemay had indicated to
4
a third party that his lawyer was incompetent. The court conducted
a hearing on the motion, but the transcript of that proceeding is
not in the record.1
By Order of February 21, 2003, the district court denied
Brown’s motion to withdraw. In so ruling, the court concluded that
Brown and his assistant had, inter alia, spent approximately twenty
hours reviewing discovery, and they had met with Lemay to discuss
his defense on six different occasions. Only when Brown advised
Lemay that he faced a potential sentence of life imprisonment if he
proceeded to trial did Lemay express dissatisfaction with Brown’s
services. When the court asked Lemay to respond to the motion,
Lemay simply asserted that he wanted a different lawyer because he
did not like the advice he had received from Brown. Based on these
facts, the court concluded that Lemay’s dissatisfaction with Brown
derived more from Lemay’s dislike for the advice he had received
than from any incompetence or ineffectiveness on Brown’s part. The
court also found the motion to be untimely because it was filed
only a few weeks before Lemay’s trial was scheduled to begin. The
court advised Lemay that he could either proceed pro se, with Brown
acting as his standby counsel, or he could continue being
1
It is unclear what happened to the record or transcript of
the hearing on Brown’s motion to withdraw. It is possible that no
record of the hearing was made, or that a record was made and
subsequently lost. The absence of a transcript of the hearing
forms part of the basis of Lemay’s appeal.
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represented by Brown. Lemay choose to continue being represented
by Brown.
On February 24, 2003, Lemay entered into a plea agreement with
the Government by which he agreed to plead guilty to the conspiracy
charge in the indictment. By that plea agreement Lemay waived “the
right to contest either the conviction or the sentence in any
direct appeal or other post-conviction action,” excluding only
claims of ineffective assistance of counsel and prosecutorial
misconduct. On February 28, 2003, the court accepted Lemay’s
guilty plea and found that he had entered into the plea agreement
knowingly and voluntarily. In responding to the court in the plea
proceedings, Lemay asserted that he was satisfied with the services
of Brown as his counsel.
On March 18, 2003, Lemay filed a motion requesting release on
bond on the ground that his mother was terminally ill with brain
cancer. On March 28, 2003, the court released Lemay with
electronic monitoring on a $10,000 unsecured bond. On July 16,
2003, he absconded and was not apprehended until February 16, 2004.
Lemay’s original presentence report (“PSR”) recommended an adjusted
offense level of 39, which combined with a criminal history
category of IV yielded a sentencing range of thirty years to life.
The revised and final PSR, however, recommended an adjusted offense
level of 43 (the highest possible offense level under the
Guidelines), which yielded a mandatory life sentence. The
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increased offense level resulted from a two-level enhancement for
absconding and the loss of a three-level reduction for acceptance
of responsibility.
On February 23, 2004, Lemay’s sentencing hearing was
conducted. Upon learning that Brown had not had an opportunity to
meet with Lemay prior to the hearing, the sentencing court recessed
to allow Brown and Lemay to consult. Lemay initially requested
that Brown seek a continuance of the hearing so that they could
properly respond to the modifications to the PSR. Brown, however,
was of the view that the PSR modifications were “appropriate.”
When the sentencing court directly asked Lemay for reasons
justifying a continuance of the sentencing proceedings, Lemay
offered none. At no point during the sentencing hearing did Brown
challenge the modifications made in the PSR. At the conclusion of
the sentencing hearing, the court imposed a sentence of life
imprisonment, in accordance with the PSR.
B.
The relevant facts surrounding Randolph’s appeal are as
follows. On February 28, 2003, Randolph, like Lemay, pleaded
guilty to the conspiracy charge. Unlike Lemay, however, Randolph
did not enter into a plea agreement with the Government; rather,
his plea was a “straight-up” guilty plea, without any promises from
or agreement with the Government.
7
On August 5, 2003, Randolph’s PSR was submitted to the
sentencing court. Based on two prior controlled substance
convictions and a finding that the conspiracy offense was committed
while Randolph was on probation, the PSR assigned Randolph four
criminal history points, which translated into a criminal history
category of III. Based on the fifty grams of cocaine base alleged
in the indictment (and admitted in Randolph’s guilty plea
proceedings), his base offense level was 32, which combined with
his criminal history category yielded a sentencing range of 151 to
188 months of imprisonment. Randolph’s PSR, however, attributed
over thirty kilograms of cocaine base to him and thus assigned a
base offense level of 38. At his sentencing hearing on November
20, 2003, the court attributed 1.5 kilograms of cocaine base to
Randolph, yielding an offense level of 35 and a sentencing range of
210 to 262 months of imprisonment. The court sentenced Randolph,
without any objection on constitutional grounds, to 210 months of
imprisonment.
C.
Both Lemay and Randolph have filed timely appeals to this
Court. We possess jurisdiction over their appeals pursuant to 28
U.S.C. § 1291.
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II.
We review de novo whether a criminal defendant has effectively
waived his right of appeal. See United States v. Blick, 408 F.3d
162, 168 (4th Cir. 2005). A claim of ineffective assistance of
counsel is cognizable on direct appeal only if it “conclusively
appears” from the record that counsel failed to provide effective
representation. See United States v. Russell, 221 F.3d 615, 619
n.5 (4th Cir. 2000). We review de novo a claim that a statute is
unconstitutional. See United States v. Martinez, 277 F.3d 517,
534 n.15 (4th Cir. 2002). And we review for plain error any claim
not properly preserved and raised for the first time on appeal.
See United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
III.
A.
Lemay makes five contentions on appeal: (1) that the district
court improperly enhanced his sentence based on facts not admitted
in connection with his guilty plea, in violation of the Sixth
Amendment; (2) that the court unconstitutionally required him to
choose between his right to counsel and his right to a trial; (3)
that the court erred in denying him the appointment of a new
lawyer; (4) that his counsel was constitutionally ineffective; and
(5) that he is entitled to a new trial because the transcript of
the hearing on his lawyer’s motion to withdraw is unavailable. The
9
Government asserts that, by the plea agreement, Lemay waived his
right to appeal all of these claims except the contention that he
was denied the effective assistance of counsel. It further
contends that we should defer Lemay’s ineffective assistance claim
for subsequent habeas corpus proceedings because it does not
“conclusively appear” from the record that Lemay’s counsel was
ineffective. We address each of these contentions in turn.
1.
We will enforce an appeal waiver to preclude claims being
asserted on appeal only if (1) the waiver is valid, and (2) the
claims asserted on appeal fall within the scope of the waiver. See
United States v. Attar, 38 F.3d 727, 731-32 (4th Cir. 1994). Lemay
does not contest the validity of his appeal waiver; thus we inquire
only into whether his claims fall within the scope of his waiver.
In connection with his plea agreement, Lemay waived “the right
to contest either the conviction or sentence in any direct appeal
or other post-conviction action,” reserving only the right to
appeal claims of ineffective assistance of counsel and
prosecutorial misconduct. By its terms, Lemay’s appeal waiver is
broad and appears to cover all of Lemay’s appellate claims save his
claim of ineffective assistance of counsel. This Court has long
recognized such appeal waivers as being generally enforceable, see
Blick, 408 F.3d at 168 n.4 (citing multiple decisions), but we have
identified a category of errors that fall outside the scope of such
10
waivers because they “could not have been reasonably contemplated
when the plea agreement was executed,” id. at 172; see also United
States v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995)
(concluding that appeal waiver did not cover claim that restitution
order was not authorized by statute when restitution order was
entered after waiver was executed); Attar, 38 F.3d at 731-33
(concluding that appeal waiver did not encompass claim of
deprivation of right to counsel). Our task here, therefore, is to
determine whether any of the alleged errors asserted in Lemay’s
appeal could not have been reasonably contemplated when he waived
his appeal rights.
Lemay first asserts that the district court improperly
enhanced his sentence beyond that which the facts admitted in
connection with his guilty plea would support, in contravention of
his Sixth Amendment right to a jury trial. This claim is
foreclosed by our decision in Blick, which held that a waiver of
the right to appeal a sentence below the statutory maximum
precludes an appeal asserting that a judicially enhanced sentence
contravenes the defendant’s Sixth Amendment right to a jury trial.
408 F.3d at 164. The appeal waiver executed by Lemay is only
different from the one underlying our Blick decision in that it
sweeps more broadly. As a result, Lemay’s Sixth Amendment claim
falls within the scope of, and is thus barred by, his appeal
waiver.
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Lemay’s contention regarding the district court’s failure to
appoint new counsel for him, and his contention that the court
forced him to choose between representation by counsel and his
right to a trial, each arise from the hearing of February 21, 2003,
on Brown’s motion to withdraw. This hearing occurred three days
before Lemay entered into the plea agreement by which he waived his
right of appeal. Given that the alleged errors occurred before his
waiver — and that he contested them at the time — it is clear that
Lemay could have reasonably contemplated these two alleged errors,
and that he actually knew of them. Therefore, these claims fall
within the scope of the appeal waiver and they are barred.
2.
Lemay’s ineffective assistance of counsel claim is expressly
excepted from the appeal waiver contained in his plea agreement.
Lemay’s appeal in this respect is therefore properly before us.
Nevertheless, because it does not conclusively appear from the
record that his counsel was ineffective, we need not reach and
assess the merits of his ineffective assistance claim.
We have consistently recognized that, because a claim of
constitutionally ineffective assistance of counsel is more
appropriately reviewed on a full record, the proper proceeding in
which to pursue such a claim is not a direct appeal but a
collateral proceeding under 18 U.S.C. § 2255. See United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). As a result, we will
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entertain a claim of ineffective assistance on direct appeal only
if it “conclusively appears” from the record that the defendant’s
counsel was ineffective. See United States v. Russell, 221 F.3d
615, 619 n.5 (4th Cir. 2000). Although Lemay’s trial counsel could
perhaps have mounted a more protracted defense on Lemay’s behalf,
there is evidence that Lemay was dissatisfied with his attorney
simply because he disliked the advice being provided. Given this
conflict, it does not conclusively appear from the record that
Lemay’s trial lawyer was ineffective. We therefore decline to
address the merits of his ineffective assistance claim in this
appeal.2
3.
Finally, Lemay contends that he is entitled to a new trial
because a transcript of the hearing on his attorney’s motion to
withdraw is unavailable. He asserts that he needs such a
transcript to support both his claim that the district court erred
in denying his request for the appointment of a new lawyer and his
claim that his counsel was constitutionally ineffective. Even
assuming that Lemay could not have “reasonably contemplated” the
absence of a transcript of the proceeding on his lawyer’s motion to
withdraw, see Blick, 408 F.3d at 172, he is unable to demonstrate
2
Our conclusion that we may not review Lemay’s ineffective
assistance claim, of course, is not “intended to prejudice, or
prejudge, in any way [his] right to apply for relief in a Section
2255 proceeding, should he choose to invoke such remedy.” United
States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970).
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that the unavailability of the transcript “specifically prejudices
his appeal,” see United States v. Huggins, 191 F.3d 532, 536 (4th
Cir. 1999) (explaining that unavailability of transcript does not
entitle defendant to new trial unless he can demonstrate specific
prejudice).
As explained above, Lemay’s claim that the district court
erroneously failed to appoint him a new lawyer is barred by the
appeal waiver in the plea agreement. Thus, the transcript would be
of no help to Lemay on this point. Furthermore, because he does
not assert that his attorney was ineffective at the hearing, but
only contends his lawyer was ineffective “leading up to the
hearing” and “after the hearing,” Lemay is unable to demonstrate
that the unavailability of the transcript prejudices his
ineffective assistance claim. Appellant’s Br. at 47, 48.
Accordingly, Lemay cannot demonstrate that the unavailability of
the transcript specifically prejudices his appeal, and we must deny
this claim as well.
B.
Randolph makes two contentions on appeal: (1) that he is
entitled to a dismissal of the indictment against him because the
statutory object of the conspiracy, 21 U.S.C. § 841, is facially
unconstitutional; and (2) that he is entitled to resentencing
because the district court improperly enhanced his sentence beyond
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that which the facts admitted in his plea proceedings would
support. Because we reject Randolph’s first contention, we are
obliged to affirm his conviction. However, because the court
plainly erred in enhancing Randolph’s sentence, we vacate his
sentence and remand for resentencing.
Randolph first asserts that, because the sentencing scheme of
21 U.S.C. § 841 depends solely on the quantity of controlled
substances determined by the sentencing judge, § 841 is
unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004),
and Apprendi v. New Jersey, 530 U.S. 466 (2000). As the Government
points out, however, we have heretofore sustained the
constitutionality of § 841 in the face of an Apprendi challenge.
See United States v. McAllister, 272 F.3d 228, 233 (4th Cir. 2001)
(upholding § 841 because statute is silent on process by which drug
quantity is to be determined). We do not (and cannot) deviate from
that precedent here.
Finally, Randolph maintains that he is entitled to
resentencing because the district court plainly erred in imposing
a sentence greater than that which the facts admitted by him in his
plea proceedings would support. As explained above, Randolph
admitted in his plea proceedings only to conspiring to possess with
intent to distribute at least fifty grams of cocaine base, which
yields a sentencing range of 151 to 188 months under the
Guidelines. The sentencing court, however, attributed at least 1.5
15
kilograms of cocaine base to Randolph, yielding a sentencing range
of 210 to 262 months. The court then sentenced Randolph to 210
months of imprisonment. Because the sentence imposed on Randolph
was greater than that which the admitted facts would support, its
imposition contravened Randolph’s Sixth Amendment right to a jury
trial. See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005). Pursuant to our decision in Hughes, such a Sixth Amendment
error in sentencing is plainly erroneous. See id. (concluding that
sentence imposed in contravention of defendant’s Sixth Amendment
right to jury trial constitutes plain error).3
IV.
Pursuant to the foregoing, we dismiss Lemay’s appeal in part
but otherwise affirm his conviction. We affirm Randolph’s
conviction, but vacate his sentence and remand for resentencing.
DISMISSED IN PART, AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
3
As in Hughes, “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of [Randolph’s] sentencing.” 401 F.3d at 545 n.4.
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