United States v. KaKeitho Hughes

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 1, 2018
• Docket: 17-6345
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0384n.06

No. 17-6345 FILED Aug 01, 2018 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) ) ON APPEAL FROM THE Plaintiff-Appellee, ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN v. ) DISTRICT OF KENTUCKY ) KAKEITHO HUGHES, ) OPINION ) Defendant-Appellant. )

BEFORE: ROGERS and BUSH, Circuit Judges; WATSON, District Judge.*

JOHN K. BUSH, Circuit Judge. Defendant KaKeitho Hughes appeals his conviction,

pursuant to a plea agreement, of possession of cocaine with the intent to distribute and possession

of a firearm by a convicted felon, on the basis that his trial counsel was ineffective. Generally,

claims that counsel was ineffective are best addressed on collateral review, not direct appeal, and

this case is no exception. Accordingly, we affirm Hughes’s conviction.

I

Hughes was subject to a four-count indictment. While Hughes was pleading guilty to

Counts 1, 3, and 4, the district judge asked whether Hughes understood that he was not waiving

his right to appeal his sentence, and Hughes agreed that he understood. After further negotiation,

Hughes and the government entered into a plea agreement whereby Hughes pleaded guilty to

Counts 1, 3, and 4, and the government dismissed Count 2; like many plea agreements, this one

* The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. No. 17-6345, United States v. Hughes

included a clause in which Hughes waived his right to appeal his sentence on grounds other than

ineffective assistance of counsel or prosecutorial misconduct.

Hughes then moved the district court to continue sentencing because a miscommunication

with his attorney resulted in his not understanding that the plea agreement contained a partial

waiver of his right to appeal his sentence. But he later moved the court to withdraw the earlier

motion, averring that he now understood the partial waiver and wished to nevertheless go forward

with the plea agreement. Hughes was sentenced and now appeals that sentence.

II

Hughes argues that his trial counsel was constitutionally deficient for failing to inform him

of the implications of waiving his right to appeal his sentence. Hughes has not presented this claim

to a district court, however, and “[t]his court will not review an ineffective assistance of counsel

claim raised for the first time on appeal.” United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.

1989).

There is a narrow exception to this rule, only applicable when the claim rests “entirely upon

facts within the record” or presents “purely legal questions.” United States v. Soto, 794 F.3d 635,

645 (6th Cir. 2015) (quoting United States v. Angel, 355 F.3d 462, 469 (6th Cir. 2004)). This

exception does not apply. Determining whether the communications between Hughes and his trial

counsel were constitutionally infirm would require evaluating those communications, which are

not contained within the record before this court. Hughes “should, therefore, raise this argument

in a collateral attack on his conviction.” United States v. Benson, 127 F. App’x 808, 811 (6th Cir.

2005).

III

For the above reasons, we AFFIRM Hughes’s sentence.