United States v. Gordon
Opinion
Colin F. Gordon pled guilty, without benefit of a plea agreement, to illegal reentry to the United States after having been deported and removed, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). Gordon thereafter pled guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 846 (2000); and use or possession of one or more firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2000). Gordon was sentenced to a total of 480 months’ imprisonment, 1 and he timely ap *640 pealed. For the following reasons, we affirm.
On appeal, Gordon’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there are no meritorious issues for appeal. Counsel suggests, however, that the district court may have erred in denying Gordon’s motion to suppress and in ordering Gordon’s sentence. Gordon advanced similar arguments in his pro se supplemental brief; in addition, he alleged he received ineffective assistance of counsel. In its letter notifying this court that it would decline to file a brief, the government contended that both the suppression and sentencing issues were foreclosed by the plea agreement corresponding to Gordon’s second guilty plea.
Gordon’s suppression motion applied to the §§ 846 and 924 counts, to which he pled guilty with a waiver of appellate rights. Rule 11(a)(2) of the Federal Rules of Criminal Procedure requires the consent of the court and the government in order for a defendant to enter a conditional plea of guilty and reserve his right to appeal an adverse determination of a pretrial motion. If the requirements of Rule 11(a)(2) are not met, the defendant is foreclosed from appealing non-jurisdictional defects, including the denial of a motion to suppress. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993). Because Gordon has not met the requirements for Rule 11(a)(2), we find that Gordon is foreclosed from appealing the denial of his motion to suppress.
Gordon also waived his right to appeal sentencing issues in the plea agreement. At Gordon’s second guilty plea hearing, to which the plea agreement is applicable, the district court explicitly noted the agreement’s appellate waiver provisions and Gordon reaffirmed his agreement to them. We conclude the waiver is valid and enforceable and that the Sixth Amendment issues raised on appeal fall within the scope of the waiver. See United States v. Blick, 408 F.3d 162, 169-73 (4th Cir.2005) (holding that waiver of right to appeal in plea agreement entered into before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), was not invalidated by change in law effected by that case and that Booker error fell within scope of waiver).
Gordon’s claims regarding the § 1326 offense are not encompassed by the appellate waiver. Counsel asserted for the first time on appeal that the criminal judgment for Gordon’s illegal reentry conviction should be vacated because the Government violated the Vienna Convention by allegedly not affording Gordon, a Jamaican national, the opportunity to consult with the Jamaican Consulate following his arrest. 2 *641 We appointed amicus counsel on Gordon’s behalf and directed the parties to submit supplemental briefs addressing whether the Vienna Convention creates individually enforceable rights cognizable on plain error review.
Because Gordon did not raise the Vienna Convention issue in district court, it is reviewed for plain error. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under the plain error standard, Gordon must show: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. Id. If these conditions are satisfied, this court may exercise its discretion to notice the error only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (internal quotation marks omitted). After reviewing the available published caselaw on the issue and the applicable district court materials pertaining to Gordon’s illegal reentry conviction and sentence, 3 we find that Gordon fails to satisfy this standard.
Finally, with respect to Gordon’s pro se ineffective assistance of counsel claim, such claims are not cognizable on direct appeal unless the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir.1999). To allow for adequate development of the record, claims of ineffective assistance generally should be brought in a 28 U.S.C. § 2255 (2000) motion. United States v. King, 119 F.3d 290, 295 (4th Cir.1997). We find that, because the record does not conclusively establish ineffective assistance, Gordon’s claim is not cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm in part and dismiss in part. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such 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 the client. We dispense with oral argument because the facts and legal contentions 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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290 F. App'x 638 (United States v. Gordon) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.