22-20508
5th Cir.Jul 5, 2023Background
- Herbert Perry, Jr. pleaded guilty pursuant to a written plea agreement to aiding and abetting the brandishing of a firearm during and in relation to a crime of violence (18 U.S.C. §§ 924(c)(1)(A)(ii) and 2).
- The district court sentenced Perry to 132 months' imprisonment and imposed a $3,000 fine.
- Perry claimed trial counsel was ineffective for (1) failing to timely file a notice of appeal (NOA) and (2) failing to object to the fine, and sought to pursue an untimely appeal.
- The plea agreement contained a broad appeal waiver that reserved only ineffective-assistance claims; the Government invoked the waiver.
- The Fifth Circuit found the record sufficiently developed to decide Perry’s ineffective-assistance claims on direct appeal.
- The court held Perry’s NOA was timely because judgment was entered on the criminal docket on Sept. 13, 2022 (making his Sept. 27 NOA timely), and found no Strickland prejudice from counsel’s alleged failure to object to the fine because the district court considered Perry’s ability to pay and Perry pointed to no additional evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Notice of Appeal / counsel ineffective for failing to file NOA | NOA was timely; counsel not ineffective | Perry: counsel failed to file NOA within Rule 4(b) deadline | Judgment was entered on docket Sept 13; Perry’s Sept 27 NOA was timely; no ineffective assistance shown |
| Counsel failed to object to $3,000 fine | Government: appeal waiver bars direct challenge; alternatively, no Strickland prejudice because court considered ability to pay | Perry: counsel ineffective for not objecting to the fine, entitling him to relief | Direct challenge barred by waiver; on ineffective-assistance claim Perry failed to show prejudice—district court considered PSR and ability to pay; fine affirmed |
Key Cases Cited
- United States v. McKinney, 406 F.3d 744 (5th Cir. 2005) (appeal waivers in plea agreements are enforceable)
- United States v. Isgar, 739 F.3d 829 (5th Cir. 2014) (ineffective-assistance claims generally not litigated on direct appeal unless the record permits fair review)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance standard: deficient performance and prejudice)