United States v. Destiny Somersall

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 17, 2024
• Docket: 23-4683
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4683

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DESTINY REBECCA SOMERSALL,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:23-cr-00030-GMG-RWT-1)

Submitted: June 13, 2024 Decided: June 17, 2024

Before RUSHING and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

ON BRIEF: Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Kimberley DeAnne Crockett, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

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PER CURIAM:

Destiny Rebecca Somersall appeals her conviction and the 480-month sentence

imposed after she pled guilty, pursuant to a plea agreement, to sex trafficking of children,

in violation of 18 U.S.C. § 1951(a), (b)(1). Counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), indicating that there are no meritorious issues

for appeal, but questioning whether the district court imposed a substantively reasonable

sentence. Somersall has filed a pro se supplemental brief, asserting that the court

unlawfully predetermined her sentence and that counsel rendered ineffective assistance.

The Government moves to dismiss the appeal based on the appeal waiver in Somersall’s

plea agreement. Upon review, we dismiss in part and affirm in part.

We first conclude that Somersall has waived her right to appeal her conviction and

sentence. A defendant may, in a valid plea agreement, waive the right to appeal under 18

U.S.C. § 3742. See United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court

reviews the validity of an appeal waiver de novo and will enforce the waiver if it is valid

and the issue appealed is within the scope thereof. United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).

An appeal waiver is valid if the defendant knowingly and intelligently agreed to the

waiver. Id. at 169. “To determine whether a defendant knowingly and voluntarily agreed

to waive h[er] appellate rights, we look to the totality of the circumstances, including the

defendant’s experience, conduct, educational background and knowledge of his plea

agreement and its terms.” United States v. Carter, 87 F.4th 217, 224 (4th Cir. 2023).

“Generally, . . . if a district court questions a defendant regarding the waiver of appellate

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rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the defendant

understood the full significance of the waiver, the waiver is valid.” Id. (internal quotation

marks omitted). Based on the totality of circumstances in this case, we conclude that

Somersall knowingly and voluntarily entered her guilty plea and understood the appeal

waiver. We therefore grant the Government’s motion to dismiss in part as to all issues

falling within the scope of the appeal waiver.

Turning to Somersall’s claim that counsel rendered ineffective assistance, such a

claim is more appropriately considered in a postconviction proceeding brought pursuant to

28 U.S.C. § 2255, unless counsel’s alleged deficiencies conclusively appear on the record.

See United States v. Kemp, 88 F.4th 539, 546 (4th Cir. 2023); see also United States v.

Campbell, 963 F.3d 309, 319 (4th Cir. 2020) (declining to consider claim on direct appeal

where the “record fail[ed] to conclusively show ineffective assistance” (internal quotation

marks omitted)). Because it does not conclusively appear on the record that counsel

rendered ineffective assistance, we decline to consider this claim on direct appeal.

In accordance with our obligations under Anders, we have reviewed the entire

record for any potentially meritorious issues that do not fall within the scope of the appeal

waiver and have found none. Accordingly, we grant the Government’s motion to dismiss,

in part, and dismiss this appeal in part as to all issues falling within the scope of the broad

appeal waiver in Somersall’s plea agreement. We deny the motion, in part, as to any issues

that do not fall within the scope of the appeal waiver and affirm the criminal judgment in

part.

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This court requires that counsel inform Somersall, in writing, of her right to petition

the Supreme Court of the United States for further review. If Somersall requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel

may move this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Somersall. 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 in the decisional process.

DISMISSED IN PART, AFFIRMED IN PART