The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH DEON BROWN, a/k/a Khayr Abdurrauf Basim Ibnbrown,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00248-WDQ-1)
Submitted: October 2, 2009 Decided: October 30, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Russell Anthony Neverdon, Sr., Baltimore, Maryland, for
Appellant. Solette Allison Magnelli, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Deon Brown pled guilty pursuant to a written
plea agreement to distribution of five grams or more of cocaine
base, in violation of 21 U.S.C. § 841 (2006). He was sentenced
to 168 months’ imprisonment. Brown timely appeals. We dismiss
in part and affirm in part.
The Government has moved to dismiss this appeal based
on the provisions of the appellate waiver contained in Brown’s
plea agreement. The plea agreement contains the following
waiver of Brown’s right to appeal:
The Defendant and this Office [of the U.S. Attorney]
knowingly and expressly waive all rights conferred by
18 U.S.C. § 3742 to appeal whatever sentence is
imposed, including any fine, term of supervised
release, or order of restitution and any issues that
relate to the establishment of the advisory guidelines
range as follows: the Defendant waives any right to
appeal from any sentence within or below the advisory
guidelines range resulting from Criminal History
Category VI and an adjusted base offense level of 34,
and this Office waives any right to appeal from any
sentence within or above the advisory guidelines range
resulting from Criminal History Category VI and an
adjusted base offense level of 34.
Brown, through counsel, opposes dismissal. He argues that the
Government did not adhere to its end of the plea agreement and
he did not receive effective assistance of counsel.
We first conclude that Brown has validly waived his
right to appeal his sentence and its calculation. A defendant
may, in a valid plea agreement, waive his appellate rights under
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18 U.S.C. § 3742 (2006). United States v. Wiggins, 905 F.2d 51,
53 (4th Cir. 1990). We review the validity of an appellate
waiver de novo and will enforce the waiver if it is valid and
the issue appealed is within the scope thereof. United
States v. Blick, 408 F.3d 162, 171 (4th Cir. 2005). An appeal
waiver is valid if the defendant knowingly and intelligently
agreed to the waiver. Id. at 169. “An appeal waiver is not
knowingly or voluntarily made if the district court fails to
specifically question the defendant concerning the waiver
provision . . . during the [Fed. R. Crim. P.] 11 colloquy and
the record indicates that the defendant did not otherwise
understand the full significance of the waiver.” United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal
quotation marks omitted). Ultimately, however, the issue is
“evaluated by reference to the totality of the circumstances.”
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
Our review of the record persuades us that Brown
knowingly and voluntarily waived his right to appeal his
sentence. The waiver’s language is clear and unambiguous, and
Brown responded in the affirmative when the district court
explicitly inquired at the guilty plea colloquy whether Brown
understood that the plea agreement foreclosed a later appeal of
his sentence unless the court imposed either an illegal sentence
or a sentence predicated on an offense level above 34. The
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district court did neither. Accordingly, we conclude the waiver
is valid and enforceable and that Brown’s challenge to his
sentence falls within the scope of the waiver. The waiver thus
precludes review of Brown’s sentence. Accordingly, we grant the
Government’s motion to dismiss Brown’s appeal to the extent it
challenges his sentence.
Brown’s remaining claims are not within the scope of
the appellate waiver provision of his plea agreement. First, as
to Brown’s argument that the Government failed to adhere to its
obligations under the plea agreement, we simply discern no such
noncompliance.
Further, we decline on direct appeal to entertain
Brown’s assertions that his trial attorney afforded ineffective
representation. Brown claims that his counsel erroneously
assured him he would receive only the mandatory minimum ten-year
sentence, misled him into pleading guilty because counsel failed
to investigate the charges and was unprepared for trial, and did
not sufficiently review the plea agreement with him,
particularly the appellate waiver provisions and the negotiated
base offense level. Brown also argues that such ineffective
assistance undercuts the validity of his plea. Unless an
attorney’s ineffectiveness is conclusively apparent on the face
of the record, however, ineffective assistance claims are not
generally addressed on direct appeal. See United States v.
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Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing
standard and noting that ineffective assistance of counsel
claims generally should be raised by motion under 28 U.S.C.A. §
2255 (West Supp. 2009)). Because we find the record in this
case falls short of this exacting standard, we decline to
address Brown’s ineffective assistance of counsel claims on
direct appeal.
Accordingly, we grant the Government’s motion to
dismiss, in part, and dismiss Brown’s challenge to his sentence.
We affirm the remainder of the district court’s judgment. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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