United States of America v. Larry Wayne Aiken

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4380
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY WAYNE AIKEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:14-cr-00022-RLV-DSC-1)
Submitted: February 29, 2016 Decided: March 22, 2016
Before KING and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry Wayne Aiken pled guilty, pursuant to a written plea
agreement, to possession of child pornography, in violation of
18 U.S.C. § 2252A(a)(5)(B) (2012). The district court sentenced
Aiken to the statutory mandatory minimum sentence of 120 months’
imprisonment. On appeal, Aiken argues that he was denied
effective assistance of counsel. The Government seeks to
enforce the appellate waiver provision of the plea agreement and
has moved to dismiss Aiken’s appeal. In response, Aiken does
not challenge the validity of the waiver, see United States v.
Copeland, 707 F.3d 522, 528 (4th Cir. 2013), but asserts that
the issue he raises on appeal is outside the scope of the
waiver, see United States v. Archie, 771 F.3d 217, 221 (4th Cir.
2014), cert. denied, 135 S. Ct. 1579 (2015).
In his plea agreement, Aiken agreed to waive his right to
appeal his conviction and sentence but reserved his right to
raise on appeal issues of ineffective assistance of counsel or
prosecutorial misconduct. Thus, Aiken’s claim that counsel was
ineffective at sentencing is outside the scope of the waiver and
is subject to appellate review. Accordingly, we deny the
Government’s motion to dismiss. Nevertheless, unless an
attorney’s ineffectiveness conclusively appears on the face of
the record, ineffective assistance claims generally are not
addressed on direct appeal. United States v. Benton, 523 F.3d

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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 here does not conclusively establish
ineffective assistance of counsel, we conclude that Aiken’s
claim should be raised, if at all, in a § 2255 motion. Thus, we
decline to review this claim on direct appeal.
Accordingly, we dismiss the appeal. 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

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