UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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
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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
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