UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4880
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL DOUGLAS BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-12)
Submitted: July 2, 2004 Decided: September 15, 2004
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Michael A. Kolb, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Gretchen C. F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a written plea agreement, Paul Douglas Baker
pled guilty to a single count of conspiracy to possess with intent
to distribute cocaine and cocaine base, in violation of 21 U.S.C.
§ 846 (2000), and was sentenced to a 292-month term of
imprisonment. Counsel has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), questioning whether the
district court erred in sentencing Baker to 292 months of
imprisonment. Counsel concedes, however, that there are no
meritorious issues for appeal. Baker filed a pro se supplemental
brief raising issues covered by counsel’s Anders brief.
Excepting claims of ineffective assistance of counsel and
prosecutorial misconduct, Baker waived his right to appeal the
judgment in his plea agreement and at the Fed. R. Crim. P. 11
hearing. A defendant may waive his right to appeal his conviction
and sentence as part of a plea agreement. United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). However, the waiver must
be knowing and voluntary. United States v. Brown, 232 F.3d 399,
403 (4th Cir. 2000); United States v. Wessells, 936 F.2d 165, 168
(4th Cir. 1991). Such waivers of appeal rights will be enforced
except where the defendant: (1) challenges his sentence on the
ground that it exceeds the statutory maximum or is based on a
constitutionally impermissible factor such as race, United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); (2) appeals
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from the denial of a motion to withdraw his plea because of
ineffective assistance of counsel, United States v. Craig, 985 F.2d
175, 178 (4th Cir. 1993); or (3) asserts a violation of the Sixth
Amendment right to counsel in proceedings following the guilty
plea. United States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).
Whether a waiver of the right to appeal is knowing and
intelligent depends on the facts and circumstances surrounding its
making, including the defendant’s background, experience, and
conduct. United States v. Davis, 954 F.2d 182, 186 (4th Cir.
1992). A waiver is ineffective if the district court fails to
question the defendant about it, Wessells, 936 F.2d at 167-68,
unless other evidence in the record shows that the waiver was
informed and voluntary. Davis, 954 F.2d at 186. We review de novo
the validity of a waiver. Marin, 961 F.2d at 496.
Baker’s waiver of appeal is valid. The record is absent
any evidence pointing to a misunderstanding regarding the waiver of
appellate rights or the validity of Baker’s plea. Therefore, the
sentencing issues addressed in the Anders brief are dismissed.
Baker’s counsel raises the issue of ineffective
assistance of counsel as an Anders issue. An allegation of
ineffective assistance of counsel should not proceed on direct
appeal unless it appears conclusively from the record that
counsel’s performance was ineffective. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We find that,
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because it is not clear that counsel was ineffective, and in fact
the evidence in the record reveals quite competent representation,
this claim should be dismissed based on an inadequate record.
Baker is free to assert this claim in a 28 U.S.C. § 2255 (2000)
motion.
Baker’s counsel also contends that the Government’s
failure to move for a downward departure for substantial assistance
constitutes prosecutorial misconduct. The Government was not
obligated under its plea agreement with Baker to so move, see
United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000), and there
is no indication that it refused to make the motion based on an
unconstitutional motive. See Wade v. United States, 504 U.S. 181,
185-86 (1992). Therefore, this claim fails.
We have examined the entire record in this case in
accordance with the requirements of Anders, and find no meritorious
issues for appeal. Accordingly, we dismiss the issues covered by
the waiver of appeal and affirm the remaining issues. Counsel has
filed a motion to withdraw from representation. 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. Thus, we deny the motion to withdraw. If Baker requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may renew his motion in this court
for leave to withdraw from representation. Counsel's motion must
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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.
DISMISSED IN PART;
AFFIRMED IN PART
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