United States v. Roger Drake

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 13, 2023
• Docket: 21-4531
• Status: Unpublished

Opinion

USCA4 Appeal: 21-4531 Doc: 32 Filed: 06/13/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4531

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROGER JAREA DRAKE, a/k/a Pissy,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. David A. Faber, Senior District Judge. (2:20-cr-00154-6)

Submitted: August 31, 2022 Decided: June 13, 2023

Before GREGORY, Chief Judge, and KING and HARRIS, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

ON BRIEF: Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Joshua Clarke Hanks, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

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PER CURIAM:

Roger Jarea Drake pled guilty to conspiracy to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and the district court

sentenced him to 151 months’ imprisonment. Drake now appeals, claiming that the district

court erred in calculating his criminal history category and the drug quantity attributable to

him, subjecting him to an improperly elevated Sentencing Guidelines range. He further

argues that his counsel rendered ineffective assistance at sentencing. The Government has

moved to dismiss the appeal, asserting that Drake’s claims are barred by the appeal waiver

in his plea agreement. For the following reasons, we grant the Government’s motion to

dismiss the appeal in part, and we affirm in part.

We will generally enforce an appeal waiver if the record establishes (1) that the

defendant knowingly and intelligently waived his right to appeal, and (2) that the issues

raised on appeal fall within the waiver’s scope. United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005). Upon review of the plea agreement and the Fed. R. Crim. P. 11 hearing,

we conclude that the guilty plea is valid and that Drake knowingly and intelligently waived

his right to appeal. Moreover, Drake’s challenges to the district court’s calculation of his

Guidelines range fall squarely within the scope of his waiver and do not constitute one of

the “extremely narrow exception[s]” to the general enforceability of appeal waivers.

United States v. Andis, 333 F.3d 886, 892 (8th Cir. 2003). Drake’s appeal waiver therefore

bars his challenge to the calculation of his Guidelines range.

Drake’s ineffective assistance claim, on the other hand, falls outside the scope of

his appeal waiver. However, we will not consider ineffective assistance claims on direct

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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). Based on our

review of the present record, Drake fails to meet this standard, and we therefore decline to

review this claim on direct appeal.

Accordingly, we grant the Government’s motion in part, dismiss Drake’s challenge

to the district court’s calculation of his sentence as barred by the appeal waiver, and affirm

the judgment as to Drake’s claim of ineffective assistance of counsel. 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 IN PART, AFFIRMED IN PART