United States v. Tavarez Brown

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 18, 2018
• Docket: 17-4734
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4734

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TAVAREZ LEE BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:17-cr-00058-WO-1)

Submitted: June 14, 2018 Decided: June 18, 2018

Before TRAXLER, DUNCAN, and WYNN, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for Appellant. Kyle David Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Tavarez Lee Brown appeals his convictions and 180-month sentence imposed

following his guilty plea to possession with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). On appeal, counsel for

Brown has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious issues for appeal, but questioning whether Brown received

ineffective assistance of counsel, whether the record contains evidence of prosecutorial

misconduct, and whether Brown’s sentence exceeded the statutory maximum or was

predicated on an unconstitutional sentencing factor. Although notified of his right to do

so, Brown has not filed a pro se supplemental brief. Relying on the appellate waiver

contained in Brown’s plea agreement, the Government has moved to dismiss any issues

that Brown did not expressly reserve. For the reasons that follow, we affirm in part and

dismiss in part.

“An appellate waiver is valid if the defendant knowingly and intelligently agreed

to it.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid appeal

waiver is generally enforceable as to issues that fall within its scope. United States v.

Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012). Our review of the record confirms that

Brown’s appeal waiver is valid and, therefore, enforceable. However, because Brown

expressly reserved the right to appeal the issues that Anders counsel raises, we cannot

dismiss this portion of the appeal on the basis of the appeal waiver.

2 Nevertheless, we find that none of these issues warrants relief. First, unless an

attorney’s ineffectiveness conclusively appears on the face of the record, ineffective

assistance claims are not generally addressed on direct appeal. United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims should be raised in a motion

brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit sufficient development of

the record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the

record does not conclusively establish ineffective assistance of counsel, we conclude that

this claim should be raised, if at all, in a § 2255 motion. Next, nothing in the record

suggests that the Government engaged in prosecutorial misconduct. Finally, Brown’s

sentence neither exceeded the statutory maximum nor was based on any impermissible

sentencing factors.

In accordance with Anders, we have reviewed the entire record in this case for any

potentially meritorious issues that might fall outside the scope of the waiver and have

found none. We therefore grant the Government’s motion and dismiss the appeal as to

any issues falling within the compass of Brown’s appellate waiver and affirm the

remainder of the district court’s judgment. This court requires that counsel inform

Brown, in writing, of the right to petition the Supreme Court of the United States for

further review. If Brown requests that a petition be filed, but counsel believes that such a

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

Brown.

3 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.

AFFIRMED IN PART; DISMISSED IN PART