UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4169

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

COLIN F. GORDON, a/k/a Big Daddy, a/k/a Christopher A. Donald,

a/k/a Daddy,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. James H. Michael, Jr.,

Senior District Judge. (CR-04-23)

Submitted: June 13, 2008 Decided: September 3, 2008

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam

opinion.

Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, APPELLATE

LITIGATION CLINIC, Charlottesville, Virginia; Jeremy N. Snyder,

Taylor J. Phillips, Third Year Law Students, Charlottesville,

Virginia, for Appellant. John L. Brownlee, United States Attorney,

Nancy S. Healey, Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1The district court’s written judgment reflects a 420-month

term on the § 846 count and a 240-month term on the § 1326 count,

to run concurrently, as well as a sixty-month term on the § 924

count, to run consecutively. According to the sentencing hearing

transcript, the district court announced a 240-month term for the

§ 846 count, to run concurrently with the 240-month term for the

§ 1326 count, as well as the consecutive sixty-month sentence on

the § 924 count. However, the sentencing transcript clearly

indicates the district court’s intention to sentence Gordon to a

total of 480 months’ imprisonment, and the court’s Statement of

Reasons adopts the presentence report without change, including its

recommendation of 360 months to life imprisonment on the § 846

count. It therefore appears beyond dispute that the court’s oral

pronouncement of a 240-month sentence on the § 846 count was an

inadvertent slip-of-the-tongue. Accordingly, because an actual

ambiguity does not exist concerning the imposition of sentence, the

rule of leniety is inapplicable. See United States v. Fisher, 58

F.3d 96, 99 (4th Cir. 1995).

-2-

PER CURIAM:

Colin F. Gordon pled guilty, without benefit of a plea

agreement, to illegal reentry to the United States after having

been deported and removed, in violation of 8 U.S.C. § 1326(a),

(b)(2) (2000). Gordon thereafter pled guilty, pursuant to a

written plea agreement, to conspiracy to possess with intent to

distribute fifty grams or more of crack cocaine, in violation of 21

U.S.C. § 846 (2000); and use or possession of one or more firearms

during and in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1) (2000). Gordon was sentenced to a total of

480 months’ imprisonment,1 and he timely appealed. For the

following reasons, we affirm. 

On appeal, Gordon’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating there are no
-3-

meritorious issues for appeal. Counsel suggests, however, that the

district court may have erred in denying Gordon’s motion to

suppress and in ordering Gordon’s sentence. Gordon advanced

similar arguments in his pro se supplemental brief; in addition, he

alleged he received ineffective assistance of counsel. In its

letter notifying this court that it would decline to file a brief,

the government contended that both the suppression and sentencing

issues were foreclosed by the plea agreement corresponding to

Gordon’s second guilty plea.

Gordon’s suppression motion applied to the §§ 846 and 924

counts, to which he pled guilty with a waiver of appellate rights.

Rule 11(a)(2) of the Federal Rules of Criminal Procedure requires

the consent of the court and the government in order for a

defendant to enter a conditional plea of guilty and reserve his

right to appeal an adverse determination of a pretrial motion. If

the requirements of Rule 11(a)(2) are not met, the defendant is

foreclosed from appealing non-jurisdictional defects, including the

denial of a motion to suppress. Tollett v. Henderson, 411 U.S.

258, 267 (1973); United States v. Willis, 992 F.2d 489, 490 (4th

Cir. 1993). Because Gordon has not met the requirements for Rule

11(a)(2), we find that Gordon is foreclosed from appealing the

denial of his motion to suppress.

Gordon also waived his right to appeal sentencing issues

in the plea agreement. At Gordon’s second guilty plea hearing, to
2

Under the Vienna Convention, when a foreign national has been

arrested, imprisoned, or taken into custody and he so requests, the

arresting government shall inform his local consular post of his

arrest, and he shall be permitted to communicate with the consular

officials. Vienna Convention on Consular Relations, Apr. 24, 1963,

art. 36, 21 U.S.T. 77, 101.

-4-

which the plea agreement is applicable, the district court

explicitly noted the agreement’s appellate waiver provisions and

Gordon reaffirmed his agreement to them. We conclude the waiver is

valid and enforceable and that the Sixth Amendment issues raised on

appeal fall within the scope of the waiver. See United States v.

Blick, 408 F.3d 162, 169-73 (4th Cir. 2005) (holding that waiver of

right to appeal in plea agreement entered into before United States

v. Booker, 543 U.S. 220 (2005), was not invalidated by change in

law effected by that case and that Booker error fell within scope

of waiver).

Gordon’s claims regarding the § 1326 offense are not

encompassed by the appellate waiver. Counsel asserted for the

first time on appeal that the criminal judgment for Gordon’s

illegal reentry conviction should be vacated because the Government

violated the Vienna Convention by allegedly not affording Gordon,

a Jamaican national, the opportunity to consult with the Jamaican

Consulate following his arrest.2 We appointed amicus counsel on

Gordon’s behalf and directed the parties to submit supplemental

briefs addressing whether the Vienna Convention creates

individually enforceable rights cognizable on plain error review.
3

Although Gordon’s waiver of appellate rights did not

encompass the sentence corresponding to his illegal reentry

conviction, Gordon fails to demonstrate the district court abused

its discretion. See Gall v. United States, 128 S. Ct. 586, 597

(2007). Gordon’s 240-month sentence for this offense was imposed

concurrent to the 420-month sentence for the § 846 offense.

Therefore, Gordon’s substantial rights were not affected by the

240-month concurrent term. See United States v. Ellis, 326 F.3d

493, 599-600 (4th Cir. 2003) (holding that sentence exceeding

statutory maximum by twenty years did not affect substantial rights

because defendant received equal or longer concurrent sentences on

other counts); United States v. Burns, 298 F.3d 523, 544-45 (6th

Cir. 2002) (holding that sentencing error did not affect

defendants’ substantial rights because error did not result in

longer term of imprisonment).

-5-

Because Gordon did not raise the Vienna Convention issue

in district court, it is reviewed for plain error. United

States v. Olano, 507 U.S. 725, 732-34 (1993). Under the plain

error standard, Gordon must show: (1) there was error; (2) the

error was plain; and (3) the error affected his substantial rights.

Id. If these conditions are satisfied, this court may exercise its

discretion to notice the error only if the error “seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736 (internal quotation marks omitted).

After reviewing the available published caselaw on the issue and

the applicable district court materials pertaining to Gordon’s

illegal reentry conviction and sentence,3 we find that Gordon fails

to satisfy this standard.

Finally, with respect to Gordon’s pro se ineffective

assistance of counsel claim, such claims are not cognizable on

direct appeal unless the record conclusively establishes
-6-

ineffective assistance. United States v. Richardson, 195 F.3d 192,

198 (4th Cir. 1999). To allow for adequate development of the

record, claims of ineffective assistance generally should be

brought in a 28 U.S.C. § 2255 (2000) motion. United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997). We find that, because the

record does not conclusively establish ineffective assistance,

Gordon’s claim is not cognizable on direct appeal.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm in part and dismiss in part. This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further review. If the client requests that a petition be filed,

but counsel believes that such 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 the client. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART;

DISMISSED IN PART