UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4085

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC MARSHALL,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Irene M. Keeley, 

District Judge. (1:15-cr-00010-IMK-JSK-1)

Submitted: August 20, 2015 Decided: August 24, 2015

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Charles T. Berry, Fairmont, West Virginia, for Appellant. Shawn 

Angus Morgan, Assistant United States Attorney, Clarksburg, West 

Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Pursuant to a written plea agreement, Eric Marshall pled 

guilty to possession of a prohibited object-heroin, in violation 

of 18 U.S.C. § 1791(a)(2), (b)(1) (2012). The parties 

stipulated in the plea agreement to a 24-month sentence. See

Fed. R. Crim. P. 11(c)(1)(C). The district court accepted 

Marshall’s guilty plea pursuant to the agreement and sentenced 

him to the stipulated sentence. Marshall appealed.

Marshall’s 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 advancing claims of 

ineffective assistance of trial counsel and prosecutorial 

misconduct. 

It is well established that a defendant may raise [a] 

claim of ineffective assistance of counsel in the 

first instance on direct appeal if and only if it 

conclusively appears from the record that . . . 

counsel did not provide effective assistance. 

Otherwise, [he] must raise [his] claim in the district 

court by a collateral challenge pursuant to 28 U.S.C. 

§ 2255 [(2012)]. 

United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014) 

(citation and internal quotation marks omitted). Because the 

record does not conclusively establish ineffective assistance of 

counsel, we conclude that Marshall should raise these claims, if 

at all, in a § 2255 motion.
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Regarding his claims of prosecutorial misconduct, Marshall 

argues that the Government should have weighed and laboratorytested the heroin. The heroin was field-tested and confirmed to 

be heroin, Marshall admitted under oath that it was heroin, and 

he was charged, convicted, and sentenced without regard to drug 

weight. We find no support in the record for his claims of 

prosecutorial misconduct.

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. Accordingly, we affirm Marshall’s conviction. Because 

Marshall’s agreed-upon sentence was imposed pursuant to Rule 

11(c)(1)(C), it is not reviewable. See 18 U.S.C. § 3742(a) 

(2012); United States v. Calderon, 428 F.3d 928, 932 (10th Cir. 

2005). Thus, we dismiss the appeal as to the sentence and we 

affirm the judgment in all other respects. 

This court requires that counsel inform Marshall, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If Marshall 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 Marshall. We dispense 

with oral argument because the facts and legal contentions are 
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adequately presented in the materials before this court and 

argument would not aid the decisional process. 

AFFIRMED IN PART; DISMISSED IN PART