United States v. Thomas Brincefield

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 28, 2019
• Docket: 18-4750
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4750

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS LEE BRINCEFIELD,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:17-cr-00025-NCT-1)

Submitted: May 23, 2019 Decided: May 28, 2019

Before KING and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Craig M. Cooley, COOLEY LAW OFFICE, Cary, North Carolina, for Appellant. John Mcrae Alsup, Assistant United States Attorney, Angela Hewlett Miller, 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Unpublished opinions are not binding precedent in this circuit.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:

Thomas Lee Brincefield appeals his 121-month sentence imposed after pleading

guilty to distribution of heroin, 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). Brincefield’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but

questioning whether the district court properly applied a two-level Sentencing Guidelines

premises enhancement and properly calculated the drug quantity attributable to

Brincefield. Brincefield has filed a pro se supplemental brief also challenging the drug

quantity and contending that his appellate waiver is invalid, his criminal history score is

incorrect, the district court improperly applied a two-level Guidelines enhancement for

possessing a firearm, and his attorney rendered constitutionally ineffective assistance.

The Government has moved to dismiss Brincefield’s appeal, invoking the appellate

waiver contained in Brincefield’s plea agreement. We grant the Government’s motion to

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

We review the validity of an appellate waiver de novo and “will enforce the

waiver if it is valid and the issue appealed is within the scope of the waiver.” United

States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). An appellate waiver must be

knowing and voluntary. Id. We generally evaluate the validity of a waiver by reference

to the totality of the circumstances. United States v. Thornsbury, 670 F.3d 532, 537 (4th

Cir. 2012). “In the absence of extraordinary circumstances, a properly conducted [Fed.

R. Crim. P.] 11 colloquy establishes the validity of the waiver.” Adams, 814 F.3d at 182.

2 Upon review of the plea agreement and the transcript of the Rule 11 hearing, we

conclude that Brincefield knowingly and voluntarily waived his right to appeal his

sentence, and that the sentencing issues Brincefield seeks to raise on appeal fall squarely

within the compass of his waiver of appellate rights. Accordingly, we grant the

Government’s motion to dismiss in part and dismiss Brincefield’s appeal as to his

sentencing claims.

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

have identified no unwaived meritorious issues for appeal. To the extent Brincefield

argues that his attorney was ineffective, we conclude that ineffective assistance of

counsel does not conclusively appear from the record and, thus, we decline to address this

claim on direct appeal. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

Brincefield’s ineffective assistance of counsel claims are more appropriately raised, if at

all, in a 28 U.S.C. § 2255 (2012) motion. See United States v. Baldovinos, 434 F.3d 233,

239 & n.4 (4th Cir. 2006). We therefore affirm the remainder of the judgment of the

district court. This court requires that counsel inform Brincefield, in writing, of the right

to petition the Supreme Court of the United States for further review. If Brincefield

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 Brincefield.

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.

DISMISSED IN PART, AFFIRMED IN PART