United States v. Thomas Stanback

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 5, 2024
• Docket: 22-4503
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4503

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS WAYNE STANBACK, a/k/a Chief,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:21-cr-00356-LCB-2)

Submitted: March 28, 2024 Decided: April 5, 2024

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Sarah M. Powell, Durham, North Carolina, for Appellant. Kyle David Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

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PER CURIAM:

Thomas Wayne Stanback pled guilty, pursuant to a written plea agreement, to two

counts of brandishing a firearm during and in relation to a crime of violence (carjacking),

in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and conspiracy to commit Hobbs Act robbery,

in violation of 18 U.S.C. § 1951(a). The district court sentenced him to a total term of 300

months’ imprisonment. On appeal, counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal

but questioning whether Stanback received ineffective assistance of counsel during the

guilty plea proceedings that rendered his plea involuntary and uninformed, as well as

during sentencing, in violation of his Sixth Amendment right to counsel. Stanback has

filed a pro se supplemental brief in which he challenges the sufficiency of the factual basis

supporting his plea. The Government moves to dismiss Stanback’s appeal pursuant to the

appellate waiver in his plea agreement. We affirm in part and dismiss in part.

“We review an appellate waiver de novo to determine whether the waiver is

enforceable” and “will enforce the waiver if it is valid and if the issue being appealed falls

within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.

2021) (internal quotation marks omitted). An appellate waiver is valid if the defendant

enters it “knowingly and intelligently, a determination that we make by considering the

totality of the circumstances.” Id. “Generally though, if a district court questions a

defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P. 11] colloquy

and the record indicates that the defendant understood the full significance of the waiver,

the waiver is valid.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal

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quotation marks omitted). Our review of the record, including the plea agreement and the

transcript of the Fed. R. Crim. P. 11 hearing, confirms that Stanback knowingly and

intelligently waived his right to appeal his convictions and sentence. We therefore

conclude that the waiver is valid and enforceable as to all issues that fall within its scope.

However, even a valid appeal waiver does not preclude a defendant from raising a

colorable constitutional challenge to the validity of his guilty plea. See United States v.

Attar, 38 F.3d 727, 732-33, 733 n.2 (4th Cir. 1994). This includes a challenge to those

proceedings leading to the plea that affected the knowing and voluntary nature of the plea

itself, including the ineffective assistance claims raised here. See United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005) (“Even if the [district] court engages in a complete plea

colloquy, a waiver of the right to appeal may not be knowing and voluntary if tainted by

the advice of constitutionally ineffective trial counsel.”); see also United States v. Craig,

985 F.2d 175, 178 (4th Cir. 1993) (noting that where defendant’s “challenge to the denial

of his plea-withdrawal motion incorporates a claim that the waiver of appeal as well as the

guilty plea itself was tainted by his counsel’s ineffectiveness,” dismissal of the appeal is

not warranted because “the waiver of appeal itself [is] being challenged by the motion to

withdraw the guilty plea”). Similarly, “even valid appeal waivers do not bar claims that a

factual basis is insufficient to support a guilty plea,” as such a claim “goes to the heart of

whether the guilty plea, including the waiver of appeal, is enforceable.” McCoy, 895 F.3d

at 364 (internal quotation marks omitted).

Additionally, “[a] defendant who waives his right to appeal a plea retains the right

to obtain appellate review of his sentence on certain limited grounds,” including that “the

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underlying conviction was obtained in violation of his Sixth Amendment right to counsel.”

Id. at 363 (internal quotation marks omitted). Therefore, Stanback did not waive his right

to effective counsel during sentencing. Attar, 38 F.3d at 732-33 (holding that general

appeal waiver does not waive a defendant’s right to appeal a sentence “on the ground that

the proceedings following entry of the guilty plea”—including the sentencing hearing

itself—“were conducted in violation of his Sixth Amendment right to counsel, for a

defendant’s agreement to waive appellate review of his sentence is implicitly conditioned

on the assumption that the proceedings following entry of the plea will be conducted in

accordance with constitutional limitations”).

Accordingly, we conclude that Anders counsel’s ineffective assistance claims and

Stanback’s supplemental pro se claims regarding the adequacy of the factual basis fall

outside the scope of the otherwise valid appeal waiver. However, we will reverse on

grounds of ineffective assistance “only if it conclusively appears in the trial record itself

that the defendant was not provided effective representation.” United States v. Freeman,

24 F.4th 320, 326 (4th Cir. 2022) (en banc) (cleaned up). Because the present record does

not conclusively show that trial counsel rendered ineffective assistance, Stanback’s claims

are not cognizable on direct appeal and “should be raised, if at all, in a 28 U.S.C. § 2255

motion.” United States v. Faulls, 821 F.3d 502, 508 (4th Cir. 2016). Additionally, we

conclude that Stanback’s plea was supported by an adequate factual basis.

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

found no potentially meritorious issues outside the scope of Stanback’s valid appellate

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waiver. We therefore grant the Government’s motion to dismiss in part and dismiss the

appeal as to all issues covered by the waiver. We otherwise affirm.

This court requires that counsel inform Stanback, in writing, of the right to petition

the Supreme Court of the United States for further review. If Stanback 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 Stanback. 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