UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRESHIA DONTE SUMMERS, a/k/a Eric Summers,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:13-cr-00006-H-2)
Submitted: March 30, 2015 Decided: April 2, 2015
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Renorda E. Pryor, HERRING LAW CENTER, PLLC, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Ireshia Donte Summers pled
guilty to conspiracy to possess stolen firearms and ammunition,
in violation of 18 U.S.C. § 371 (2012) (Count One); possession
of firearms within 1000 feet of a school, and aiding and
abetting the same, in violation of 18 U.S.C. §§ 922(q)(2)(A),
924, & 2 (2012) (Count Four); and possession of firearms and
ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2012) (Count Six). The district court
sentenced Summers to 360 months’ imprisonment, the bottom of the
Guidelines range, which reflected concurrent terms of 60 months
on Count One, 60 months on Count Four, and 360 months on Count
Six.
Summers’ counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but questioning whether venue
was proper. Summers filed a pro se supplemental brief that,
liberally construed, challenges the validity of his guilty plea
and asserts claims of ineffective assistance of counsel. * For
the reasons that follow, we affirm.
In his pro se brief, Summers argues that he would not have
pled guilty but for defense counsel’s assurances that his
*
The Government elected not to file a brief.
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federal sentence would not be enhanced based on conduct related
to the federal offenses for which charges were pending in state
court. Because Summers did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “[T]o satisfy the plain error
standard, [Summers] must show: (1) an error was made; (2) the
error is plain; and (3) the error affects substantial rights.”
United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009). Our review of the record leads us to conclude that the
district court fully complied with Rule 11 of the Federal Rules
of Criminal Procedure in accepting Summers’ guilty plea.
Summers’ plea agreement contained no provisions concerning
his pending state charges and Summers stated under oath at the
plea hearing that his plea was not based on promises outside of
the plea agreement. See Blackledge v. Allison, 431 U.S. 63, 73-
74 (1977) (absent “clear and convincing evidence” to the
contrary, defendant is bound by statements made under oath at
guilty plea hearing). We conclude that Summers is not entitled
to relief on his guilty plea challenge.
Counsel argues, in the Anders brief, that venue for Count
Four, possession of firearms and ammunition in a school zone,
and aiding and abetting, was not proper in the Eastern District
of North Carolina, because the offense occurred in the Middle
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District of North Carolina. By pleading guilty without
reserving the right to challenge venue on appeal, Summers waived
any right to challenge venue in this Court. See United States
v. Bundy, 392 F.3d 641, 650 n.3 (4th Cir. 2004) (“Where a
defendant who pled guilty presents on appeal an issue that he
did not even attempt to preserve by means of a conditional plea,
we decline to entertain the appeal on the ground that the
defendant’s unconditional plea waived that issue altogether.”);
United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001)
(collecting cases and explaining that “[v]enue is not
jurisdictional” and is waived by a “valid plea”).
Finally, Summers asserts that he was denied effective
assistance of counsel at the plea stage and at sentencing. As
stated above, he claims that he pled guilty based on counsel’s
promise that his sentence would not be enhanced by pending
related state court charges. He also contends that counsel was
ineffective at sentencing for failing to object to information
in the presentence report that was used to enhance his sentence.
To succeed on a claim of ineffective assistance, Summers
must show that (1) trial counsel’s performance was
constitutionally deficient and (2) such deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). To satisfy the performance prong, Summers must
demonstrate that trial counsel’s performance fell below an
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objective standard of reasonableness under prevailing
professional norms. Id. at 688. The prejudice prong is
satisfied, within the context of a guilty plea, if Summers can
demonstrate “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Unless an attorney’s ineffectiveness conclusively appears
on the face of the record, such claims are not generally
addressed on direct appeal, United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008), but rather 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 the
record does not conclusively establish ineffective assistance of
counsel, we conclude that these claims should be raised, if at
all, in a § 2255 motion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Summers’ convictions and sentence.
This court requires that counsel inform Summers, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Summers 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
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representation. Counsel’s motion must state that a copy thereof
was served on Summers. 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
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