UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC MARTIN PEPKE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:15-cr-00319-FL-1)
Submitted: October 31, 2016 Decided: November 7, 2016
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Martin Pepke pled guilty, in accordance with a written
plea agreement, to receipt of child pornography, in violation of
18 U.S.C. § 2252(a)(2), (b)(1) (2012). The district court
sentenced Pepke to 97 months’ imprisonment, to be followed by
lifetime supervised release. Pepke timely appealed.
Pepke’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal, but questioning whether Pepke’s sentence was
reasonable. Pepke filed a pro se supplemental brief, with a
supplement. The Government has moved to dismiss the appeal on
the basis of Pepke’s waiver in his plea agreement of the right
to appeal his sentence. We affirm in part and dismiss in part.
We review de novo the validity of an appeal waiver. United
States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). “We
generally will enforce a waiver . . . if the record establishes
that the waiver is valid and that the issue being appealed is
within the scope of the waiver.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir. 2012) (internal quotation marks
omitted). A defendant’s waiver is valid if he agreed to it
“knowingly and intelligently.” United States v. Manigan, 592
F.3d 621, 627 (4th Cir. 2010).
Our review of the record leads us to conclude that Pepke
knowingly and voluntarily waived the right to appeal his
2
sentence, except for claims of ineffective assistance or
prosecutorial misconduct not known to Pepke at the time of his
guilty plea. * We therefore grant the Government’s motion to
dismiss and dismiss the portion of the appeal pertaining to
Pepke’s sentence. We note, however, that Pepke’s waiver of his
right to appeal his sentence does not preclude our review of
Pepke’s conviction or his challenges to his sentence based on
ineffective assistance or prosecutorial misconduct.
In his pro se supplemental brief, Pepke asserts that the
images to which he pled guilty do not depict child pornography
and that the images were “intrastate.” This claim is belied by
the record.
Pepke argues that the seizure of his files violates the
Fourth Amendment because a detective accessed those files before
obtaining a search warrant. This antecedent nonjurisdictional
allegation is waived by Pepke’s valid guilty plea. Tollett v.
Henderson, 411 U.S. 258, 267 (1973).
Next, Pepke claims that the prosecutor made false
statements at the arraignment and at the sentencing hearing. To
establish prosecutorial misconduct, Pepke must demonstrate that
the prosecutor’s conduct was improper and that it prejudicially
* Accordingly, we reject Pepke’s pro se claim that he did
not knowingly and voluntarily waive his right to appeal.
3
affected his substantial rights. United States v. Caro, 597
F.3d 608, 624-25 (4th Cir. 2010); see also United States v.
Armstrong, 517 U.S. 456, 464 (1996) (noting presumption of
regularity accorded prosecutorial decisions). Because Pepke did
not raise these claims in the district court, our review is for
plain error. United States v. Alerre, 430 F.3d 681, 689 (4th
Cir. 2005). We conclude that Pepke’s conclusory claims, which
fail to specify the substance of the prosecutor’s purportedly
false statements, fail to establish prosecutorial misconduct.
Finally, Pepke asserts that he was denied effective
assistance of counsel because his attorney did not contact him a
week after sentencing, as promised, did not give him adequate
time to review “relevant documents,” and told him that he would
receive five years’ supervised release when he actually received
lifetime supervision. 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 the
record does not conclusively establish ineffective assistance of
4
counsel, we conclude that these claims should be raised, if at
all, in a § 2255 motion.
Pursuant to Anders, we have reviewed the entire record for
meritorious, nonwaived issues and have found none. We therefore
affirm in part and dismiss in part. This court requires that
counsel inform Pepke, in writing, of his right to petition the
Supreme Court of the United State for further review. If Pepke
requests that such a petition be filed, but counsel believes
that the 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 of the motion was served on Pepke.
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
5