United States v. Clay Westbrook

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 7, 2022
• Docket: 21-4321
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4321

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CLAY WESTBROOK,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:20-cr-00013-TSK-MJA-1)

Submitted: September 23, 2022 Decided: October 7, 2022

Before MOTZ and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

ON BRIEF: Hilary L. Godwin, Assistant Federal Public Defender, Jenny R. Thoma, Research & Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Zelda E. Wesley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

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PER CURIAM:

Clay Westbrook pled guilty, pursuant to a written plea agreement, to possession

with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

The district court sentenced Westbrook as a career offender, imposing a 151-month

sentence. Westbrook’s counsel initially filed an Anders * brief, but prior to conducting our

Anders review, we granted the parties’ request for supplemental briefing in light of our

recent decision in United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). Relying on

Campbell, Westbrook argues that the district court plainly erred in sentencing him as a

career offender. In response, the Government contends that this claim is barred by the

waiver of appellate rights in his plea agreement. We agree, and thus dismiss this appeal.

We review de novo the issue of whether a defendant validly waived his right to

appeal. United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018). Where, as here, the

Government seeks to enforce the appeal waiver and has not breached the plea agreement,

we will enforce the waiver if it is valid and the issue being appealed falls within the

waiver’s scope. United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).

A defendant’s waiver of appellate rights is valid if he entered it knowingly and

intelligently. Id. In making this determination, we consider “the totality of the

circumstances, including the experience and conduct of the defendant, his educational

background, and his knowledge of the plea agreement and its terms.” McCoy, 895 F.3d at

362 (internal quotation marks omitted). Generally, if the district court fully questions a

* Anders v. California, 386 U.S. 738 (1967).

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defendant regarding the waiver provision during the plea “colloquy and the record indicates

that the defendant understood the full significance of the waiver, the waiver is valid.” Id.

(internal quotation marks omitted).

Westbrook does not contend that his plea was not knowing and voluntary or that the

magistrate judge did not adequately review the terms of the waiver during the Fed. R. Crim.

P. 11 hearing. Nor does Westbrook assert that his argument that the district court plainly

erred in sentencing him as a career offender is outside the scope of the waiver. Instead, he

claims that his counsel was ineffective in the district court in failing to object to his career

offender classification, and ineffective assistance claims are outside the scope of his

waiver.

However, in his opening brief, Westbrook only mentioned ineffective assistance in

a footnote. This is insufficient to raise an argument before this court. See United States v.

Arbaugh, 951 F.3d 167, 174 n.2 (4th Cir. 2020) (recognizing “[w]e do not ordinarily

entertain arguments made solely in a footnote because they lack the development required

by Federal Rule of Appellate Procedure 28”). While Westbrook does fully argue

ineffective assistance in his reply brief, we also do not consider arguments raised for the

first time in a reply brief. United States v. Caldwell, 7 F.4th 191, 212 n.16 (4th Cir. 2021).

Even if we were to exercise our discretion to excuse Westbrook’s waiver, we do not

address ineffective assistance claims on direct appeal “[u]nless an attorney’s

ineffectiveness conclusively appears on the face of the record.” United States v. Faulls,

821 F.3d 502, 507-08 (4th Cir. 2016). The record here does not conclusively demonstrate

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ineffective assistance of counsel. Thus, Westbrook’s “claim should be raised, if at all, in a

28 U.S.C. § 2255 motion.” Id. at 508.

Accordingly, we dismiss this appeal. 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.

DISMISSED