United States v. Christopher Jackson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5064

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CHRISTOPHER LAMAR JACKSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-00711-HFF-4; 7:09-cv-70020-HFF)

Submitted: February 16, 2012 Decided: March 1, 2012

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant. William N. Nettles, United States Attorney, E. Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Christopher Lamar Jackson appeals his conviction and

192-month sentence following his guilty plea to conspiracy to

possess with intent to distribute and distribution of five

kilograms or more of cocaine and fifty kilograms or more of

crack cocaine, in violation of 21 U.S.C. § 846 (2006). On

appeal, counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), asserting that there are no meritorious

grounds for appeal but questioning whether the district court’s

sentence was proper. Jackson filed pro se supplemental briefs

raising additional issues.

Pursuant to our review under Anders, we directed the

parties to file supplemental briefs addressing the adequacy of

the district court’s explanation for the sentence and the

standard of review to be applied on appeal. In the supplemental

brief, Jackson’s counsel asserts the district court failed to

provide an adequate explanation for the chosen sentence. The

Government asserts that the appellate waiver provision in the

plea agreement bars any claim of sentencing error. We affirm in

part and dismiss in part.

We review a defendant’s waiver of appellate rights de

novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005). “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

2
forgo the right to appeal.” United States v. Amaya-Portillo,

423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks

omitted). To determine whether the waiver is knowing and

intelligent, we look to “the totality of the circumstances,

including the experience and conduct of the accused, as well as

the accused’s educational background and familiarity with the

terms of the plea agreement.” United States v. General, 278

F.3d 389, 400 (4th Cir. 2002) (internal quotation marks

omitted). We will enforce a valid waiver so long as “the issue

being appealed is within the scope of the waiver.” Blick, 408

F.3d at 168.

In the plea agreement, Jackson agreed to “waive[] the

right to contest either the conviction or the sentence in any

direct appeal or other post-conviction action,” excepting only

claims of ineffective assistance and prosecutorial misconduct

from the scope of the waiver. Neither counsel nor Jackson

asserts any error in the plea colloquy or challenges the

validity of the appellate waiver. * Our review of the record

leads us to conclude that Jackson’s waiver was knowing and

intelligent.

*
Although Jackson asserts the Government breached the plea
agreement by improperly using information he shared under a
cooperation agreement to enhance his sentence, we conclude that
his claim is not supported by the record.

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Turning to the scope of the waiver, we conclude that

the issue raised in the Anders briefs and the sentencing issues

raised in the pro se supplemental briefs fall within the scope

of the appellate waiver provision. Because Jackson’s sentencing

claims are barred by the appellate waiver provision, we dismiss

this portion of the appeal.

The waiver provision does not, however, bar the

ineffective assistance claim Jackson raises in his pro se

supplemental briefs. “A defendant can raise the claim of

ineffective assistance of counsel . . . on direct appeal if and

only if it conclusively appears from the record that his counsel

did not provide effective assistance. . . .” United States v.

Martinez, 136 F.3d 972, 979 (4th Cir. 1998). We conclude that

the record does not conclusively demonstrate that counsel was

ineffective. See Strickland v. Washington, 466 U.S. 668, 688,

694 (1984) (providing elements of ineffective assistance claim).

Thus, we decline to consider Jackson’s ineffective assistance

claim on direct appeal.

In accordance with Anders, we have reviewed the entire

record and have found no unwaived and potentially meritorious

issues for review. We therefore affirm Jackson’s conviction and

dismiss the appeal of his sentence. This court requires that

counsel inform Jackson, in writing, of his right to petition the

Supreme Court of the United States for further review. If

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Jackson requests that a petition be filed, but counsel believes

that such a petition would be frivolous, counsel may move in

this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Jackson. We

dispense with oral argument because the facts and legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART