UNITED STATES v. GIVENS (2020)

Shaun L. Givens seeks to appeal his conviction and sentence imposed following his guilty plea to conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (2018). Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), concluding that there are no meritorious grounds for appeal but questioning whether Givens’ trial counsel was constitutionally effective and whether the district court improperly applied an enhancement for possession of firearms. Givens has filed a supplemental pro se brief in which he similarly objects to the firearm enhancement. The Government has moved to dismiss the appeal based on the waiver of appellate rights in Givens’ plea agreement. We affirm in part and dismiss in part.

Givens’ waiver of appellate rights does not prevent him from challenging the validity of the plea itself. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir.), cert. denied, ––– U.S. ––––, 139 S. Ct. 494, 202 L.Ed.2d 386 (2018). Before accepting a guilty plea, the district court must ensure that the plea is knowing, voluntary, and supported by an independent factual basis. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). “In evaluating the constitutional validity of a guilty plea, courts look to the totality of the circumstances surrounding it, granting the defendant’s solemn declaration of guilt a presumption of truthfulness.” United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (brackets and internal quotation marks omitted). Because Givens neither raised an objection during the Rule 11 proceeding nor moved to withdraw his guilty plea in the district court, we review the validity of his plea for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014); see Henderson v. United States, 568 U.S. 266, 272, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (discussing plain error standard of review). We conclude that the district court fully complied with the Rule 11 requirements and correctly determined that Givens’ guilty plea was knowing, voluntary, and supported by a sufficient factual basis. Accordingly, Givens’ appellate waiver is valid and bars the sentencing argument that he seeks to raise on appeal.

Givens also asserts that his trial counsel was constitutionally ineffective because he advised Givens to accept a plea offer without a binding sentencing recommendation and failed to file a notice of appeal when instructed to do so. These claims fall outside the scope of Givens’ appellate waiver, but we do not consider ineffective assistance claims on direct appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the face of the record.” United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). Givens repeatedly affirmed that he was satisfied with his attorney’s representation regarding the plea agreement, and the record contains no evidence to support Givens’ bare allegations that he timely instructed his attorney to file a notice of appeal. Moreover, the Government has not moved to dismiss the appeal as untimely, so Givens has suffered no prejudice from any lapse on counsel’s part regarding the filing of a notice of appeal. Therefore, we conclude that Givens’ ineffective assistance of counsel claims are not cognizable on direct appeal.

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal that fall outside of the scope of the waiver. Therefore, we deny the Government’s motion to dismiss in part and affirm the conviction. We decline to consider Givens’ ineffective assistance of counsel claims. We grant the Government’s motion in part and dismiss the appeal in all other respects. See United States v. Blick, 408 F.3d 162, 168-70 (4th Cir. 2005).

This court requires that counsel inform Givens, in writing, of the right to petition the Supreme Court of the United States for further review. If Givens 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 Givens. 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

PER CURIAM:

Affirmed in part, dismissed in part by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.