UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY LUJAN AIKEN, a/k/a Jeremy Lajuan Aiken,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-92)
Submitted: January 11, 2006 Decided: February 6, 2006
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kurt W. Meyers, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeremy Lujan Aiken pled guilty to one count of aiding and
abetting the possession with intent to distribute more than fifty
grams of cocaine base and one count of possession of a firearm by
a felon, in violation of 18 U.S.C. §§ 2, 922(g)(1); 21 U.S.C.
§ 841(a)(1) (2000), and was sentenced to 224 months’ imprisonment.
Aiken appeals his sentence, alleging ineffective assistance of
counsel and claiming his sentence was unreasonable under United
States v. Booker, 543 U.S. 220 (2005). For the reasons explained
below, we affirm the sentence.
Aiken, who was a career offender, was assigned a base
offense level of thirty-seven. See U.S. Sentencing Guidelines
Manual § 4B1.1 (2004). The district court applied a three-level
adjustment for acceptance of responsibility, thereby giving Aiken
an adjusted offense level of thirty-four. Aiken was assessed
sixteen criminal history points, which placed him in criminal
history category VI. The resulting advisory guideline range was
262 to 327 months.
Both Aiken and his counsel objected to the Presentence
Investigation Report; however, the district court overruled their
objections. The Government moved for a two-level reduction under
USSG § 5K1.1. The district court granted the Government’s motion
and adjusted Aiken’s offense level to thirty-two, thereby making
the final guideline range 210 to 262 months. The findings in the
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presentence report, as amended, were adopted and the court
sentenced Aiken to imprisonment for 224 months on Count One and
imposed a concurrent sentence of 120 months on Count Two.
On appeal, Aiken’s counsel raises the following issues:
(1) whether trial defense counsel was ineffective for failing to
note that Aiken was “subject to an undischarged term of
imprisonment”; and (2) whether the district court’s “fail[ure] to
consider [Aiken’s] sentencing argument in any context other than
the mandatory guideline scheme” violated Aiken’s right to a
“reasonable sentence” under Booker. In response, the Government
argued the record did not establish that trial defense counsel
provided ineffective assistance. Further, the Government asserted
Aiken waived the right to challenge his sentence under the terms of
his plea agreement.
Aiken first contends he received ineffective assistance
of counsel. An ineffective assistance of counsel claim is
generally not cognizable on direct appeal, but should instead be
asserted in a post-conviction petition under 28 U.S.C. § 2255
(2000). See, e.g., United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). However, we have recognized an exception to the
general rule when “it ‘conclusively appears’ from the record that
defense counsel did not provide effective representation.” Id.
(citation omitted).
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Aiken specifically alleges his counsel was ineffective
for “fail[ing] to object to any mention of the [undischarged] State
sentence in an effort to mitigate such a lengthy sentence as
[Aiken] looked likely to receive.” He bases this assertion on
§ 5G1.3, which provides that in “cases involving an undischarged
term of imprisonment, the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.” USSG
§ 5G1.3(c). Aiken, however, fails to establish how such an
objection would have changed the proceedings. As acknowledged in
his brief on appeal, “[i]t is apparent from the record that
everyone was aware that [he], at the time of sentencing, was
subject to an undischarged term of imprisonment.” Furthermore, §
5G1.3 leaves it to the court’s discretion to determine what
sentence should be imposed. For these reasons, it is not apparent
from the face of the record that Aiken’s counsel was ineffective
and Aiken’s claim is therefore not cognizable on appeal.
Next, Aiken seeks to challenge his sentence as
“unreasonable” under Booker. The Government argues this issue is
precluded by the appeal waiver in Aiken’s plea agreement. Though
Aiken argues he could not “waiv[e] a right that did not exist at
the time of his waiver,” he fails to address this court’s decision
in United States v. Blick, 408 F.3d 162 (4th Cir. 2005). In Blick,
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we determined that so long as a defendant has effectively waived
his right to appeal, and the issue the defendant seeks to appeal is
within the scope of such waiver, the terms of the agreement will be
enforced. See id. at 168-72. Furthermore, we explicitly rejected
the argument now advanced by Aiken. See id. at 170 (“We also
reject Blick’s contention that he could not have knowingly waived
his rights under Booker . . . because that case had not been
decided when he entered into the plea agreement.”).
Aiken does not allege that the plea agreement was entered
into involuntarily or without an understanding of its consequences.
The language of the agreement is clear and unambiguous. Aiken
explicitly agreed to waive all rights under both Apprendi and
Blakely. He agreed to be sentenced in accordance with the
guidelines and acknowledged that the maximum sentence was governed
by the United States Code. Furthermore, as noted by the district
court, the terms of the plea agreement were favorable to Aiken as
several charges were dismissed “[a]nd rather than facing a life
sentence . . . he face[d] only a 210- to 262-month window for
sentencing under the Guidelines.” Therefore, we conclude the
appeal waiver is both valid and enforceable. Additionally, Aiken’s
challenge to the reasonableness of his sentence clearly falls
within the scope of the waiver and, as such, the terms of the
agreement will be enforced.
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We therefore affirm the sentence imposed by the district
court. 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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