           Case: 18-15315   Date Filed: 12/06/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-15315
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:18-cr-00010-ECM-GMB-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                  versus

CHRISTOPHER IMAN ULMER,

                                                        Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                            (December 6, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Christopher Ulmer appeals his conviction after pleading guilty to possession

of methamphetamine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1). On appeal, Ulmer argues his counsel was ineffective for failing to file

a timely motion to suppress the drugs. Ulmer also says the district court erred

when it denied Ulmer leave to file an untimely motion to suppress. After careful

review, we dismiss both of Ulmer’s claims. See United States v. Tyndale, 209

F.3d 1292, 1294 (11th Cir. 2000) (per curiam) (declining to rule on an ineffective

assistance of counsel claim raised in a direct appeal); United States v. Benitez-

Zapata, 131 F.3d 1444, 1446–47 (11th Cir. 1997) (dismissing an appeal to enforce

the terms of a valid appeal waiver).

                                          I.

      In March 2017, probation officers visited a home on Holiday Inn Drive,

looking for Ulmer. At the time, Ulmer was serving a seven-year probation term.

Ulmer’s probation officer believed Ulmer had moved in with a “lady friend” at

Holiday Inn Drive, though Ulmer told probation he was living at another address.

The probation officers found Ulmer and his female friend at the home on Holiday

Inn Drive. Without a warrant, officers searched the home and found marijuana and

methamphetamine in the garage.

      In January 2018, a grand jury indicted Ulmer for two counts of possession of

a controlled substance with intent to distribute. Ulmer entered a plea of not guilty.



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On February 7, 2018, a magistrate judge appointed two federal public defenders

for Ulmer. The magistrate judge ordered Ulmer’s attorneys to submit all pretrial

motions, including motions to suppress, by March 12, 2018. Due to a conflict of

interest, both of Ulmer’s attorneys withdrew from his case on March 2.

        The magistrate judge appointed a defense attorney under the Criminal

Justice Act (“CJA”) on March 2, but did not reset the March 12 deadline for

pretrial motions. Ulmer’s CJA attorney, who was also preparing for a capital

murder trial, never filed a motion to suppress the drugs found at the Holiday Inn

Drive address. The CJA attorney withdrew from representing Ulmer on June 1,

2018.

        Ulmer received yet another defense attorney on June 4, 2018. A week later,

Ulmer’s counsel successfully moved to postpone Ulmer’s trial date to September

4, 2018. However, Ulmer’s new attorney did not request leave to file an untimely

motion to suppress until August 13, 2018.

        The magistrate judge denied Ulmer leave to file a late motion to suppress

because he had not shown “good cause for his extended delay” in filing. Ulmer

again requested leave to file a late suppression motion. Ulmer argued he had good

cause for the delay because his attorney was appointed on June 1, months after the

March 12 deadline for pretrial motions had passed, and his new attorney needed




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time to evaluate the merit of filing a suppression motion. The district court

rejected Ulmer’s argument and denied him leave to file a suppression motion.

      On August 30, 2018, Ulmer pled guilty to one count of possession of

methamphetamine with intent to distribute. Ulmer’s written plea agreement

included this appeal waiver:

             [T]he defendant expressly waives any and all rights
             conferred by 18 U.S.C. § 3742 to appeal the conviction
             or sentence. The defendant further expressly waives the
             right to attack the conviction or sentence in any post-
             conviction proceeding . . . . Exempt from this waiver is
             the right to appeal or collaterally attack the conviction or
             sentence on the grounds of ineffective assistance of
             counsel or prosecutorial misconduct.

      At the change-of-plea hearing, the magistrate judge asked Ulmer, “Do you

understand that by pleading guilty with this plea agreement, you will have waived,

or given up, your right to appeal or collaterally attack all or part of your sentence?”

Ulmer confirmed he understood. The magistrate judge then accepted Ulmer’s plea

as “knowing and voluntary.”

      Ulmer timely appealed.

                                          II.

      This Court reviews de novo claims of ineffective assistance of counsel.

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). But we will not

address claims for ineffective assistance of counsel on direct appeal, “[e]xcept in




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the rare instance when the record is sufficiently developed.” United States v.

Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005) (citation omitted).

       We also review a district court’s denial of leave to file an untimely motion to

suppress for abuse of discretion. See United States v. Taylor, 792 F.2d 1019, 1025

(11th Cir. 1986). However, we cannot consider arguments foreclosed by a valid

waiver of appeal. See United States v. Johnson, 541 F.3d 1064, 1068–69 (11th

Cir. 2008). To determine whether Ulmer’s sentence appeal waiver was valid, we

perform a de novo review. Id. at 1066.

                                               III.

                                                A.

       Ulmer argues his attorneys were ineffective for failing to file a timely

motion to suppress the drugs found at the home on Holiday Inn Drive. 1

Specifically, Ulmer says his CJA attorney was ineffective for missing the pretrial

motion deadline and never filing a motion to suppress. And he says his next (and

last) attorney was ineffective for filing a suppression motion “over 150 days past

the deadline for filing pretrial motions, and over 70 days after filing his notice of

appearance.”




       1
         Ulmer’s claim for ineffective assistance is not barred by his appeal waiver, since his
waiver explicitly reserved his right to appeal “on the grounds of ineffective assistance of
counsel.”


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      We decline to consider Ulmer’s ineffective assistance claim, however,

because the record before us is not adequately developed. “[A] claim of

ineffective assistance of counsel may not be raised on direct appeal where the

claim has not been heard by the district court nor a factual record developed.”

United States v. Khoury, 901 F.2d 948, 969 (11th Cir. 1990). For instance, the

record does not reveal why Ulmer’s attorneys failed to file a timely suppression

motion, which would reveal whether they performed deficiently. See Green v.

Nelson, 595 F.3d 1245, 1251 (11th Cir. 2010) (contrasting attorneys’ “strategic

choice” not to file a motion to suppress with “inaction resulting from an admittedly

mistaken view of the evidence in the case”). And without more information about

Ulmer’s relationship to the home on Holiday Inn Drive, we also cannot say

whether a motion to suppress the drugs Ulmer possessed would have merit. Cf.

United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) (“[I]t goes without

saying that counsel is not ineffective for failing to file a meritless suppression

motion.”).

      We therefore dismiss Ulmer’s claim without prejudice to his remedy under

28 U.S.C. § 2255. See Khoury, 901 F.2d at 969.

                                          B.

      Ulmer also argues that the district court abused its discretion by denying him

leave to file a late motion to suppress. The government responds that this claim is



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barred by the appeal waiver in Ulmer’s written plea agreement, which reserved

only Ulmer’s claims for ineffective assistance of counsel and prosecutorial

misconduct.

      To enforce an appeal waiver, defendant must enter into the waiver

knowingly and voluntarily. United States v. Bascomb, 451 F.3d 1292, 1294 (11th

Cir. 2006). A waiver is valid if the government shows that the district court

specifically questioned the defendant about the waiver. Johnson, 541 F.3d at 1066.

      The government has met its burden here. The record shows the magistrate

judge explained the terms of the appeal waiver to Ulmer. Specifically, the

magistrate judge told Ulmer he would ordinarily “have the right to appeal any

sentence that’s imposed,” but by accepting the plea agreement, Ulmer would

“waive[], or give[] up,” his right to appeal. After the plea colloquy, the court

found Ulmer had entered his plea knowingly and voluntarily. See United States v.

Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (per curiam) (holding an appeal

waiver was knowingly and voluntarily entered because the plea “colloquy

establishes that the defendant understood the nature and extent of the appeal

waiver and agreed to it”). Thus, we will enforce Ulmer’s plea agreement

according to its terms and dismiss his claim that the district court abused its

discretion.

      DISMISSED.



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