United States of America v. Shaun L. Givens

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4752

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHAUN L. GIVENS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. David A. Faber, Senior District Judge. (5:18-cr-00066-1)

Submitted: May 1, 2020 Decided: May 26, 2020

Before NIEMEYER, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

Charles T. Berry, Kingmont, West Virginia, for Appellant. Timothy Doyle Boggess,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
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 (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, 139 S. Ct. 494 (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

3

(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).

4

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