USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4641
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGELA GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:19-cr-00346-BO-3)
Submitted: September 15, 2022 Decided: September 23, 2022
Before WYNN, THACKER, and HEYTENS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: Elisa Cyre Salmon, SALMON LAW FIRM, LLP, Lillington, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 2 of 5
PER CURIAM:
Angela Griffin pled guilty, pursuant to a written plea agreement, to bank fraud and
aiding and abetting, in violation of 18 U.S.C. §§ 2, 1344, and the district court imposed a
sentence of 12 months’ imprisonment. On appeal, Griffin raises an ineffective assistance
of counsel claim, arguing that counsel misadvised her that probation was the most likely
outcome in her case. Griffin also asserts that her guilty plea was involuntary because, she
argues, the district court was required, under Fed. R. Crim. P. 11(b)(1)(I), to advise her that
a probationary sentence was prohibited under 18 U.S.C. § 3561(a)(1). Finally, Griffin
claims that the district court did not announce a nonmandatory condition of supervised
release at sentencing, as required by United States v. Rogers, 1 and that the court failed to
explain why it was imposing the nonmandatory conditions and did not consider her
sentencing arguments. The Government responds that Griffin’s challenges fail on the
merits and that her non-Rogers sentencing claims are barred by the appellate waiver in
Griffin’s plea agreement. We affirm in part and dismiss in part.
First, claims of ineffective assistance of counsel generally are not cognizable on
direct appeal. United States v. Jordan, 952 F.3d 160, 163 n.1 (4th Cir. 2020). We review
de novo ineffective assistance of counsel claims brought on direct appeal and will only
grant relief if ineffective assistance conclusively appears on the record. United States v.
Freeman, 24 F.4th 320, 326 (4th Cir. 2022) (en banc). “To establish an ineffective
assistance of counsel claim, a defendant must show (1) that counsel’s performance was not
1 961 F.3d 291, 296-99 (4th Cir. 2020).
2 USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 3 of 5
objectively reasonable and (2) that counsel’s deficient performance prejudiced [her].” Id.
We have reviewed the record with these standards in mind and conclude that ineffective
assistance does not appear on the face of the present record. Thus, Griffin’s claim is not
cognizable on direct appeal.
Next, Griffin challenges the voluntariness of her guilty plea. Because Griffin did
not seek to withdraw her guilty plea, we review the adequacy of the Fed. R. Crim. P. 11
hearing for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016).
“Under the plain error standard, [we] will correct an unpreserved error if (1) an error was
made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Harris, 890 F.3d 480, 491 (4th Cir. 2018) (internal quotation marks omitted). To
demonstrate that an error was plain, Griffin must be able to show that “‘the settled law of
the Supreme Court or this circuit establishes that an error has occurred’ or [that] other
circuits are unanimous on the point.” United States v. Carthorne, 878 F.3d 458, 464 (4th
Cir. 2017) (quoting United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)).
A district court must advise a defendant if the offense of conviction carries a
mandatory minimum penalty. Fed. R. Crim. P. 11(b)(1)(I). Griffin was convicted of bank
fraud under 18 U.S.C. § 1344, which does not have a statutory mandatory minimum
sentence. See 18 U.S.C. § 1344 (requiring a fine of no more than $1,000,000, imprisonment
of no more than 30 years, or both). And because bank fraud is a Class B felony, see 18
U.S.C. § 3559(a)(2), Griffin was ineligible for a sentence of probation under 18 U.S.C.
§ 3561(a)(1).
3 USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 4 of 5
Griffin asserts that her guilty plea was involuntary because the court did not advise
her that she was ineligible for probation, which she contends effectively results in a
mandatory minimum “active sentence of imprisonment.” Opening Br. at 15. She relies on
United States v. Daiagi, 892 F.2d 31, 33 (4th Cir. 1989), wherein we concluded that, for
the purposes of a motion by the government based on a defendant’s substantial assistance,
a district court has authority to impose a sentence below the mandatory minimum or to
impose probation when it would otherwise be prohibited by § 3561(a)(1). However, there
was no substantial assistance motion in Griffin’s case, and Daiagi says nothing about the
court’s obligation under Rule 11 to explain that a probationary sentence is not allowed. Cf.
United States v. Anderson, 325 F. App’x 265, 266 (4th Cir. 2009) (per curiam) (“Daiagi is
distinguishable because the court limited its holding to situations where the Government
has made a substantial assistance motion.”). Moreover, the only circuit to have directly
addressed the relationship between Rule 11 and § 3561(a)(1) has rejected Griffin’s
argument. 2 Therefore, any error is not plain, and we will not disturb Griffin’s plea on this
basis.
See United States v. Ladue, 866 F.3d 978, 981 (8th Cir. 2017) (rejecting 2
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USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4641
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGELA GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:19-cr-00346-BO-3)
Submitted: September 15, 2022 Decided: September 23, 2022
Before WYNN, THACKER, and HEYTENS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: Elisa Cyre Salmon, SALMON LAW FIRM, LLP, Lillington, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 2 of 5
PER CURIAM:
Angela Griffin pled guilty, pursuant to a written plea agreement, to bank fraud and
aiding and abetting, in violation of 18 U.S.C. §§ 2, 1344, and the district court imposed a
sentence of 12 months’ imprisonment. On appeal, Griffin raises an ineffective assistance
of counsel claim, arguing that counsel misadvised her that probation was the most likely
outcome in her case. Griffin also asserts that her guilty plea was involuntary because, she
argues, the district court was required, under Fed. R. Crim. P. 11(b)(1)(I), to advise her that
a probationary sentence was prohibited under 18 U.S.C. § 3561(a)(1). Finally, Griffin
claims that the district court did not announce a nonmandatory condition of supervised
release at sentencing, as required by United States v. Rogers, 1 and that the court failed to
explain why it was imposing the nonmandatory conditions and did not consider her
sentencing arguments. The Government responds that Griffin’s challenges fail on the
merits and that her non-Rogers sentencing claims are barred by the appellate waiver in
Griffin’s plea agreement. We affirm in part and dismiss in part.
First, claims of ineffective assistance of counsel generally are not cognizable on
direct appeal. United States v. Jordan, 952 F.3d 160, 163 n.1 (4th Cir. 2020). We review
de novo ineffective assistance of counsel claims brought on direct appeal and will only
grant relief if ineffective assistance conclusively appears on the record. United States v.
Freeman, 24 F.4th 320, 326 (4th Cir. 2022) (en banc). “To establish an ineffective
assistance of counsel claim, a defendant must show (1) that counsel’s performance was not
1 961 F.3d 291, 296-99 (4th Cir. 2020).
2 USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 3 of 5
objectively reasonable and (2) that counsel’s deficient performance prejudiced [her].” Id.
We have reviewed the record with these standards in mind and conclude that ineffective
assistance does not appear on the face of the present record. Thus, Griffin’s claim is not
cognizable on direct appeal.
Next, Griffin challenges the voluntariness of her guilty plea. Because Griffin did
not seek to withdraw her guilty plea, we review the adequacy of the Fed. R. Crim. P. 11
hearing for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016).
“Under the plain error standard, [we] will correct an unpreserved error if (1) an error was
made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Harris, 890 F.3d 480, 491 (4th Cir. 2018) (internal quotation marks omitted). To
demonstrate that an error was plain, Griffin must be able to show that “‘the settled law of
the Supreme Court or this circuit establishes that an error has occurred’ or [that] other
circuits are unanimous on the point.” United States v. Carthorne, 878 F.3d 458, 464 (4th
Cir. 2017) (quoting United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)).
A district court must advise a defendant if the offense of conviction carries a
mandatory minimum penalty. Fed. R. Crim. P. 11(b)(1)(I). Griffin was convicted of bank
fraud under 18 U.S.C. § 1344, which does not have a statutory mandatory minimum
sentence. See 18 U.S.C. § 1344 (requiring a fine of no more than $1,000,000, imprisonment
of no more than 30 years, or both). And because bank fraud is a Class B felony, see 18
U.S.C. § 3559(a)(2), Griffin was ineligible for a sentence of probation under 18 U.S.C.
§ 3561(a)(1).
3 USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 4 of 5
Griffin asserts that her guilty plea was involuntary because the court did not advise
her that she was ineligible for probation, which she contends effectively results in a
mandatory minimum “active sentence of imprisonment.” Opening Br. at 15. She relies on
United States v. Daiagi, 892 F.2d 31, 33 (4th Cir. 1989), wherein we concluded that, for
the purposes of a motion by the government based on a defendant’s substantial assistance,
a district court has authority to impose a sentence below the mandatory minimum or to
impose probation when it would otherwise be prohibited by § 3561(a)(1). However, there
was no substantial assistance motion in Griffin’s case, and Daiagi says nothing about the
court’s obligation under Rule 11 to explain that a probationary sentence is not allowed. Cf.
United States v. Anderson, 325 F. App’x 265, 266 (4th Cir. 2009) (per curiam) (“Daiagi is
distinguishable because the court limited its holding to situations where the Government
has made a substantial assistance motion.”). Moreover, the only circuit to have directly
addressed the relationship between Rule 11 and § 3561(a)(1) has rejected Griffin’s
argument. 2 Therefore, any error is not plain, and we will not disturb Griffin’s plea on this
basis.
See United States v. Ladue, 866 F.3d 978, 981 (8th Cir. 2017) (rejecting 2
defendant’s “contention that ineligibility for probation is a mandatory minimum penalty within the meaning of Rule 11(b)(1)(I)” (internal quotation marks omitted)). Similarly, the Tenth Circuit has held that where, as here, the statute of conviction does not require imprisonment because it provides a fine as an alternative, the more general prohibition on probation in § 3561(a)(1) cannot be read to require imprisonment. United States v. Elliott, 971 F.2d 620, 622 (10th Cir. 1992); see 18 U.S.C. § 1344 (requiring a fine or imprisonment, “or both”). While we have previously rejected that argument in unpublished authority, see United States v. Greene, 92 F.3d 1183 (4th Cir. 1996) (per curiam) (unpublished table decision), the inescapable fact remains that Griffin was not subject to a (Continued) 4 USCA4 Appeal: 21-4641 Doc: 35 Filed: 09/23/2022 Pg: 5 of 5
Finally, our review of the record reveals that the district court announced the
nonmandatory condition requiring Griffin to support her dependents at sentencing,
defeating her Rogers claim. Griffin’s remaining challenges to her sentence are barred by
the valid appellate waiver in her plea agreement. See United States v. Archie, 771 F.3d
217, 221 (4th Cir. 2014) (providing standard). We therefore dismiss Griffin’s appeal as to
all issues within the scope of her valid appellate waiver and affirm the remainder of the
judgment. 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
mandatory minimum term of imprisonment—as she claims—because the district court could have opted solely to fine her under her statute of conviction.