UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4616
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LAMONT STANCIL, a/k/a DAP, a/k/a Daffy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Dever III,
Chief District Judge. (4:11-cr-00062-D-1)
Submitted: February 22, 2013 Decided: March 7, 2013
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, 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Unpublished opinions are not binding precedent in this circuit.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:
Derrick Lamont Stancil appeals his convictions and
sentence for conspiracy to possess with intent to distribute a
quantity of heroin, in violation of 21 U.S.C. § 846 (2006)
(Count One), and possession with intent to distribute a quantity
of heroin, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count
Two). Counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious issues
but raising for the court’s consideration (1) whether counsel
was ineffective for not filing a motion to suppress, and
(2) whether the drug quantity was in error because it was based
on testimony that was unreliable and not credible. Stancil was
informed of the opportunity to file a pro se brief, but did not
do so. The Government did not file a brief. Finding no error,
we affirm.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claims in
a 28 U.S.C.A. § 2255 (West Supp. 2012) motion. Id.; United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). However,
ineffective assistance claims are cognizable on direct appeal if
the record conclusively establishes ineffective assistance.
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Massaro v. United States, 538 U.S. 1690, 1693-94 (2003); United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We
conclude that the record does not conclusively establish that
counsel was ineffective.
Stancil initially challenged the drug quantity that
was attributed to him for sentencing purposes. After the
Government conducted further investigation and reduced Stancil’s
drug quantity, Stancil withdrew all objections, including his
objection to the drug quantity. Because Stancil withdrew his
objection to the drug quantity, although he believed he was
responsible for even less heroin, appellate review is waived.
Generally, unpreserved errors in sentencing are reviewed for
plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may
waive appellate review of a sentencing error if he raises it and
then knowingly withdraws an objection to the error before the
district court. See United States v. Horsfall, 552 F.3d 1275,
1283 (11th Cir. 2008) (finding that defendant’s withdrawal of
objection to sentence enhancement precluded appellate review of
enhancement); United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002) (“A party who identifies an issue, and then
explicitly withdraws it, has waived the issue.”). An appellant
is precluded from challenging a waived issue on appeal. See
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Rodriguez, 311 F.3d at 437. Such a waiver is distinguishable
“from a situation in which a party fails to make a timely
assertion of a right — what courts typically call a
‘forfeiture,’” id. (quoting Olano, 507 U.S. at 733), which, as
noted above, may be reviewed on appeal for plain error. See
Olano, 507 U.S. at 733-34. Because Stancil affirmatively
withdrew his objection to the drug quantity, the issue is
waived.
Moreover, the record clearly establishes that
Stancil’s guilty plea was counseled, knowing, and voluntary.
The district court substantially complied with Fed. R. Crim. P.
11 and questioned Stancil, counsel and the Government to ensure
the voluntariness of his guilty plea. Accordingly, we affirm
the convictions.
Stancil’s sentence is reviewed for reasonableness,
applying the abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id.; United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). After determining whether the
district court correctly calculated the advisory Guidelines
range, this court must decide whether the court considered the
18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments
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presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is
free of significant procedural error, this court will review the
substantive reasonableness of the sentence. Lynn, 592 F.3d at
575.
We conclude that the district court did not abuse its
discretion at sentencing. The court considered the arguments
from each party and determined that a middle-of-the-Guidelines
sentence was appropriate. We affirm the sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Stancil’s convictions and sentence. This
court requires that counsel inform Stancil, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Stancil 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 Stancil. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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