UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:15-cr-00010-IMK-JSK-1)
Submitted: August 20, 2015 Decided: August 24, 2015
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant. Shawn
Angus Morgan, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Eric Marshall pled
guilty to possession of a prohibited object-heroin, in violation
of 18 U.S.C. § 1791(a)(2), (b)(1) (2012). The parties
stipulated in the plea agreement to a 24-month sentence. See
Fed. R. Crim. P. 11(c)(1)(C). The district court accepted
Marshall’s guilty plea pursuant to the agreement and sentenced
him to the stipulated sentence. Marshall appealed.
Marshall’s 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 advancing claims of
ineffective assistance of trial counsel and prosecutorial
misconduct.
It is well established that a defendant may raise [a]
claim of ineffective assistance of counsel in the
first instance on direct appeal if and only if it
conclusively appears from the record that . . .
counsel did not provide effective assistance.
Otherwise, [he] must raise [his] claim in the district
court by a collateral challenge pursuant to 28 U.S.C.
§ 2255 [(2012)].
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014)
(citation and internal quotation marks omitted). Because the
record does not conclusively establish ineffective assistance of
counsel, we conclude that Marshall should raise these claims, if
at all, in a § 2255 motion.
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Regarding his claims of prosecutorial misconduct, Marshall
argues that the Government should have weighed and laboratory-
tested the heroin. The heroin was field-tested and confirmed to
be heroin, Marshall admitted under oath that it was heroin, and
he was charged, convicted, and sentenced without regard to drug
weight. We find no support in the record for his claims of
prosecutorial misconduct.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Marshall’s conviction. Because
Marshall’s agreed-upon sentence was imposed pursuant to Rule
11(c)(1)(C), it is not reviewable. See 18 U.S.C. § 3742(a)
(2012); United States v. Calderon, 428 F.3d 928, 932 (10th Cir.
2005). Thus, we dismiss the appeal as to the sentence and we
affirm the judgment in all other respects.
This court requires that counsel inform Marshall, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Marshall 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 Marshall. We dispense
with oral argument because the facts and legal contentions are
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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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