UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4429
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEMONZE E. FORD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(CR-03-1094)
Submitted: July 14, 2005 Decided: July 21, 2005
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
C. Carlyle Steele, Jr., Greenville, South Carolina, for Appellant.
E. Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lemonze E. Ford appeals the district court’s judgment
entered pursuant to his guilty plea of conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). Ford’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
asserting that the district court erred in improperly advising Ford
of the nature and consequences of his guilty plea prior to
accepting that plea of guilty. Ford has filed a pro se
supplemental brief asserting that his sentence violates the Sixth
Amendment, and that he received ineffective assistance of counsel.
However, because Ford’s plea agreement contained a waiver of his
right to appeal as to most issues, we dismiss the appeal in part
and affirm in part.
A defendant may waive his right to appeal 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). This
Court reviews de novo the validity of a waiver. United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992). Ford’s plea agreement
waived all rights to appellate review except the right to appeal in
order to assert claims of ineffective assistance of counsel or
prosecutorial misconduct. The district court expressly questioned
Ford about the waiver of his appellate rights. Ford assured the
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court through counsel that he understood the terms of his plea
agreement and entered into it freely. Accordingly, we conclude
that Ford’s waiver was knowing and voluntary. Brown, 232 F.3d at
403. We further hold that in accordance with our decisions in
United States v. Johnson, 410 F.3d 137, 152-53 (4th Cir. 2005), and
United States v. Blick, 408 F.3d 162, 170-71 (4th Cir. 2005),
Ford’s waiver of his right to appeal that was accepted prior to the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738
(2005), is not invalidated by the change in law effected by that
decision. Accordingly, we dismiss Ford’s appeal as to his
sentencing claim.
Ford next argues that his counsel was ineffective for
failing to object to the court’s determination that Ford was a
career offender. This Court will not consider Ford’s claim of
ineffective assistance of counsel claim on direct appeal “unless
counsel’s ineffectiveness conclusively appears on the record.”
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003), cert.
denied, 540 U.S. 1134 (2004). Our review of the record discloses
no such conclusive evidence that Ford received ineffective
assistance of counsel. Accordingly, we affirm as to this claim.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore dismiss in part and affirm in part. This
court requires that counsel inform his client, in writing, of his
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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 a 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 decision process.
DISMISSED IN PART;
AFFIRMED IN PART
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