UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUSTIN ALLEN CARTER,
Defendant - Appellant.
No. 13-4824
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODERICK D. STEVENS,
Defendant - Appellant.
No. 13-4827
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAYVON BRYAN RILEY,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00140-BO-3; 7:12-cr-00140-BO-2; 7:12-
cr-00140-BO-1)
Submitted: July 25, 2014 Decided: August 6, 2014
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Scott Brettschneider, Uniondale, New York; G. Ryan Willis,
WILLIS JOHNSON & NELSON, PLLC, Raleigh, North Carolina; James C.
White, LAW OFFICES OF JAMES C. WHITE P.C., Chapel Hill, North
Carolina, for Appellants. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants Dustin Allen Carter, Dayvon Bryan Riley,
and Roderick D. Stevens pled guilty to conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349 (2012). Riley and
Stevens also pled guilty to additional related charges,
including aiding and abetting aggravated identity theft, in
violation of 18 U.S.C. §§ 2, 1028A(a)(1) (2012). The district
court sentenced Carter to 78 months’ imprisonment, Riley to 156
months’ imprisonment, and Stevens to 96 months’ imprisonment.
On appeal, each of the Appellants objects to two
sentencing enhancements applied by the district court. Carter
additionally argues that the district court failed to address
his sentencing objections and failed to explain its reasons for
selecting the sentence that it did. Riley also argues that his
plea was not knowingly made, that the district court violated
Fed. R. Crim. P. 32(e)(2), (i)(1)(A), and that counsel was
ineffective because he failed to object to the Rule 32
violation. Finally, Stevens argues that counsel was ineffective
because he failed to object to certain sentencing enhancements.
Relying on the waiver of appellate rights in Riley’s
and Stevens’ plea agreements, the Government urges the dismissal
of their challenges to the sentencing enhancements and alleged
Rule 32 violation. We affirm in part and dismiss in part.
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We first address Carter’s argument that the district
court failed to resolve his objections to his sentence
enhancements for a loss amount of at least $400,000 and the use
of sophisticated means. See U.S. Sentencing Guidelines Manual
§§ 2B1.1(b)(1)(H), (b)(10)(C) (2012).Carter failed to meet his
burden of presentation for both enhancements at issue. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)
(discussing burden). It was undisputed that the Government had
validated more than 800 credit card numbers used in the scheme
and that these numbers were sufficient to support a loss amount
of $400,000 or more. Although Carter urged the adoption of the
“usability” standard adopted by the Ninth Circuit in United
States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012), Carter
produced no evidence or argument that any of the valid numbers
were not useable. Carter also did not address the sophisticated
means enhancement at sentencing, and the record supports its
application. Therefore, the district court did not clearly err
by adopting the Guidelines calculations of the presentence
report summarily with regard to the challenged enhancements.
United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir.
2010).
We next address Carter’s argument that the district
court erred by failing to state its reasons for imposing the
sentence that it chose. Carter did not request a below-
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Guidelines sentence or otherwise object to the district court’s
explanation of his sentence. Therefore, we review this claim
for plain error. United States v. Powell, 650 F.3d 388, 395
(4th Cir. 2011). Because the district court imposed the
sentence that Carter requested, he cannot show that the court’s
failure to explain that sentence caused him substantial injury.
Id.
Turning to Riley’s arguments, he asserts that his
guilty plea was not knowing and voluntary because he
underestimated the sentencing range. Riley’s plea agreement
acknowledged that he could not rely on any estimate of his
sentence within the statutory range. Such uncertainty does not
prevent a guilty plea from being knowingly made. See United
States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
Therefore, Riley’s failure to correctly estimate his Guidelines
range did not affect the validity of his plea.
Riley’s and Stevens’ remaining claims, except for
their claims of ineffective assistance of counsel, are barred by
their appeal waivers. A defendant may waive the right to appeal
if that waiver is knowing and intelligent. United States v.
Davis, 629 F.3d 349, 354-55 (4th Cir. 2012). Generally, if the
district court questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is valid and enforceable.
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United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013).
Upon de novo review, see United States v. Manigan, 592
F.3d 621, 626 (4th Cir. 2010) (stating standard of review), we
conclude that Riley and Stevens knowingly and voluntarily waived
the right to appeal any sentence not in excess of the applicable
Guidelines range on any basis except ineffective assistance of
counsel or prosecutorial misconduct unknown at the time of the
plea. The record also reveals that the district court fully
questioned the defendants regarding the appeal waivers at the
Fed. R. Crim. P. 11 hearings. Therefore, the waivers are valid,
and Riley and Stevens are barred from challenging the
determination of their sentences.
Finally, we decline to reach Riley’s and Stevens’
claims of ineffective assistance of counsel. Unless an
attorney’s ineffectiveness conclusively appears on the face of
the record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Instead, such claims should be raised
in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in
order to permit sufficient development of the record. United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because there is no conclusive evidence of ineffective
assistance of counsel on the face of the record, we conclude
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that these claims should be raised, if at all, in a § 2255
motion.
Accordingly, with respect to Carter’s appeal, we
affirm the district court’s judgment. We also affirm the
validity of Riley’s guilty plea, dismiss Riley’s and Stevens’
sentencing claims based upon the waiver of appellate rights in
the plea agreements, and decline to review Riley’s and Stevens’
claims of ineffective assistance of counsel. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this Court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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