UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4747
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSHUA ALAN HUFFMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-41-V)
Submitted: September 28, 2005 Decided: November 2, 2005
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Denzil H. Forrester, DENZIL H. FORRESTER, Charlotte, North
Carolina, for Appellant. Robert J. Conrad, Jr., United States
Attorney, Kimlani S. Murray, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joshua Alan Huffman appeals his conviction and 117 month
sentence imposed after he pleaded guilty, pursuant to a plea
agreement, to one count of bank robbery by force or violence, in
violation of 18 U.S.C. § 2113(a) (2000), and one count of using and
carrying a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A) (2000). We affirm in part
and dismiss in part.
On appeal, counsel filed an Anders* brief asserting that
there are no meritorious issues for appeal, but arguing at
Huffman’s request that the prosecutor engaged in misconduct and
that Huffman’s counsel at trial was ineffective. Huffman filed a
pro se supplemental brief in which he asserted that the
enhancements of his offense level violated the holding of
Blakely v. Washington, 542 U.S. 296 (2004), and he is entitled to
be resentenced. In his supplemental brief addressing the impact of
United States v. Booker, 125 S. Ct. 738 (2005), counsel asserts
that because Huffman’s mental capacity was never evaluated by a
qualified physician, the district court could not give reasonable
consideration to that factor in determining Huffman’s sentence
pursuant to Booker. In a supplemental response brief, the
Government argues that, unlike the claims of prosecutorial
misconduct and ineffective assistance of counsel asserted in the
*
Anders v. California, 386 U.S. 738 (1967).
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opening brief, the sentencing claims in the supplemental briefs are
precluded by the waiver of appellate rights in Huffman’s plea
agreement.
Huffman initially asserts that the Assistant United
States Attorney (AUSA) engaged in misconduct in failing to mention
at sentencing that Huffman brandished the handgun used in the
second robbery. A claim of prosecutorial misconduct is reviewed to
determine whether the conduct complained of so infected the trial
with unfairness as to make the resulting conviction a denial of due
process. United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.
2002). To prevail under this standard, Huffman must show that “the
prosecutor’s remarks or conduct were improper and, second . . .
that such remarks or conduct prejudicially affected his substantial
rights” so as to deprive him of a fair trial. Id. Our review of
the record leads us to conclude that none of the AUSA’s remarks
were improper, and her failure to mention at sentencing that
Huffman brandished a firearm was also not improper. Moreover, even
if there were some impropriety in the AUSA’s remarks, Huffman has
not demonstrated any prejudice resulting from those remarks.
Huffman also asserts that counsel was ineffective in
failing to petition the district court for a mental health
evaluation based upon an injury to his frontal lobe caused by an
assault during a robbery in September 2001. An allegation of
ineffective assistance should not proceed on direct appeal unless
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it appears conclusively from the record that counsel’s performance
was ineffective. United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). We conclude that counsel’s purported deficient
performance in failing to request a mental health evaluation is not
apparent from the record, as Huffman’s competence was not
reasonably put in issue. Beck v. Angelone, 261 F.3d 377, 387 (4th
Cir. 2001). Huffman may assert his ineffective assistance claim in
proceedings under 28 U.S.C. § 2255 (2000).
The Government argues that the substantive issues
attacking his sentence that Huffman asserts in his pro se and
formal supplemental briefs are barred by the plea agreement waiver
of appellate rights. We review the validity of a waiver of
appellate rights de novo, United States v. Brown, 232 F.3d 399, 403
(4th Cir. 2000), and will uphold it if the waiver is valid and the
issue being appealed is covered by the waiver. United States v.
Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is valid if
the defendant’s agreement to the waiver was knowing and voluntary.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). Generally,
if a district court fully questions a defendant regarding his
waiver of appellate rights during the Rule 11 colloquy, the waiver
is valid. Wessells, 936 F.2d at 167-68.
In this case, the magistrate judge conducted a Rule 11
colloquy, had the AUSA summarize the plea agreement, including the
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waiver provision, and asked Huffman whether he agreed with the
AUSA’s summary and whether he had signed the plea agreement.
Huffman replied in the affirmative. Huffman was nineteen years old
and had a ninth grade education. He indicated that he understood
the proceedings and, although he was taking medication for an
anxiety disorder and depression, the medication did not impair his
ability to understand and participate in the proceedings. The
magistrate judge also correctly explained the statutory maximum
penalties for the charges to which Huffman agreed to plead guilty.
Huffman’s sentence of 117 months of imprisonment was within this
statutory range. Although the district court’s discussion of the
plea agreement was somewhat brief, it was sufficient to establish
that Huffman knowingly and intelligently entered into the plea
agreement and the appellate waiver provision. United States v.
General, 278 F.3d 389, 399-401 (4th Cir. 2002).
Moreover, we recently held that a plea agreement waiver
of the right to appeal that was accepted prior to the Supreme
Court’s decision in Booker was not invalidated by the change in law
effected by that decision. United States v. Blick, 408 F.3d 162,
170-71 (4th Cir. 2005). We conclude that Huffman’s waiver of his
right to appeal was knowing and voluntary and his sentence is
within the scope of the waiver provision. We therefore decline to
consider the substantive arguments related to his sentence.
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In accordance with Anders, we have thoroughly examined
the entire record for any other potentially meritorious issues and
have found none. Accordingly, we affirm Huffman’s conviction and
sentence and dismiss his claims under Blakely and Booker as barred
by his plea agreement waiver. This court requires that counsel
inform Huffman, in writing, of the right to petition the Supreme
Court of the United States for further review. If Huffman 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 Huffman. 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.
DISMISSED IN PART AND
AFFIRMED IN PART
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