UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLIN F. GORDON, a/k/a Big Daddy, a/k/a Christopher A. Donald,
a/k/a Daddy,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James H. Michael, Jr.,
Senior District Judge. (CR-04-23)
Submitted: June 13, 2008 Decided: September 3, 2008
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, APPELLATE
LITIGATION CLINIC, Charlottesville, Virginia; Jeremy N. Snyder,
Taylor J. Phillips, Third Year Law Students, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Nancy S. Healey, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Colin F. Gordon pled guilty, without benefit of a plea
agreement, to illegal reentry to the United States after having
been deported and removed, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2000). Gordon thereafter pled guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute fifty grams or more of crack cocaine, in violation of 21
U.S.C. § 846 (2000); and use or possession of one or more firearms
during and in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (2000). Gordon was sentenced to a total of
480 months’ imprisonment,1 and he timely appealed. For the
following reasons, we affirm.
On appeal, Gordon’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there are no
1
The district court’s written judgment reflects a 420-month
term on the § 846 count and a 240-month term on the § 1326 count,
to run concurrently, as well as a sixty-month term on the § 924
count, to run consecutively. According to the sentencing hearing
transcript, the district court announced a 240-month term for the
§ 846 count, to run concurrently with the 240-month term for the
§ 1326 count, as well as the consecutive sixty-month sentence on
the § 924 count. However, the sentencing transcript clearly
indicates the district court’s intention to sentence Gordon to a
total of 480 months’ imprisonment, and the court’s Statement of
Reasons adopts the presentence report without change, including its
recommendation of 360 months to life imprisonment on the § 846
count. It therefore appears beyond dispute that the court’s oral
pronouncement of a 240-month sentence on the § 846 count was an
inadvertent slip-of-the-tongue. Accordingly, because an actual
ambiguity does not exist concerning the imposition of sentence, the
rule of leniety is inapplicable. See United States v. Fisher, 58
F.3d 96, 99 (4th Cir. 1995).
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meritorious issues for appeal. Counsel suggests, however, that the
district court may have erred in denying Gordon’s motion to
suppress and in ordering Gordon’s sentence. Gordon advanced
similar arguments in his pro se supplemental brief; in addition, he
alleged he received ineffective assistance of counsel. In its
letter notifying this court that it would decline to file a brief,
the government contended that both the suppression and sentencing
issues were foreclosed by the plea agreement corresponding to
Gordon’s second guilty plea.
Gordon’s suppression motion applied to the §§ 846 and 924
counts, to which he pled guilty with a waiver of appellate rights.
Rule 11(a)(2) of the Federal Rules of Criminal Procedure requires
the consent of the court and the government in order for a
defendant to enter a conditional plea of guilty and reserve his
right to appeal an adverse determination of a pretrial motion. If
the requirements of Rule 11(a)(2) are not met, the defendant is
foreclosed from appealing non-jurisdictional defects, including the
denial of a motion to suppress. Tollett v. Henderson, 411 U.S.
258, 267 (1973); United States v. Willis, 992 F.2d 489, 490 (4th
Cir. 1993). Because Gordon has not met the requirements for Rule
11(a)(2), we find that Gordon is foreclosed from appealing the
denial of his motion to suppress.
Gordon also waived his right to appeal sentencing issues
in the plea agreement. At Gordon’s second guilty plea hearing, to
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which the plea agreement is applicable, the district court
explicitly noted the agreement’s appellate waiver provisions and
Gordon reaffirmed his agreement to them. We conclude the waiver is
valid and enforceable and that the Sixth Amendment issues raised on
appeal fall within the scope of the waiver. See United States v.
Blick, 408 F.3d 162, 169-73 (4th Cir. 2005) (holding that waiver of
right to appeal in plea agreement entered into before United States
v. Booker, 543 U.S. 220 (2005), was not invalidated by change in
law effected by that case and that Booker error fell within scope
of waiver).
Gordon’s claims regarding the § 1326 offense are not
encompassed by the appellate waiver. Counsel asserted for the
first time on appeal that the criminal judgment for Gordon’s
illegal reentry conviction should be vacated because the Government
violated the Vienna Convention by allegedly not affording Gordon,
a Jamaican national, the opportunity to consult with the Jamaican
Consulate following his arrest.2 We appointed amicus counsel on
Gordon’s behalf and directed the parties to submit supplemental
briefs addressing whether the Vienna Convention creates
individually enforceable rights cognizable on plain error review.
2
Under the Vienna Convention, when a foreign national has been
arrested, imprisoned, or taken into custody and he so requests, the
arresting government shall inform his local consular post of his
arrest, and he shall be permitted to communicate with the consular
officials. Vienna Convention on Consular Relations, Apr. 24, 1963,
art. 36, 21 U.S.T. 77, 101.
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Because Gordon did not raise the Vienna Convention issue
in district court, it is reviewed for plain error. United
States v. Olano, 507 U.S. 725, 732-34 (1993). Under the plain
error standard, Gordon must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial rights.
Id. If these conditions are satisfied, this court may exercise its
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted).
After reviewing the available published caselaw on the issue and
the applicable district court materials pertaining to Gordon’s
illegal reentry conviction and sentence,3 we find that Gordon fails
to satisfy this standard.
Finally, with respect to Gordon’s pro se ineffective
assistance of counsel claim, such claims are not cognizable on
direct appeal unless the record conclusively establishes
3
Although Gordon’s waiver of appellate rights did not
encompass the sentence corresponding to his illegal reentry
conviction, Gordon fails to demonstrate the district court abused
its discretion. See Gall v. United States, 128 S. Ct. 586, 597
(2007). Gordon’s 240-month sentence for this offense was imposed
concurrent to the 420-month sentence for the § 846 offense.
Therefore, Gordon’s substantial rights were not affected by the
240-month concurrent term. See United States v. Ellis, 326 F.3d
493, 599-600 (4th Cir. 2003) (holding that sentence exceeding
statutory maximum by twenty years did not affect substantial rights
because defendant received equal or longer concurrent sentences on
other counts); United States v. Burns, 298 F.3d 523, 544-45 (6th
Cir. 2002) (holding that sentencing error did not affect
defendants’ substantial rights because error did not result in
longer term of imprisonment).
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ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999). To allow for adequate development of the
record, claims of ineffective assistance generally should be
brought in a 28 U.S.C. § 2255 (2000) motion. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). We find that, because the
record does not conclusively establish ineffective assistance,
Gordon’s claim is not cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm in part and dismiss in part. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such 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 the client. 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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