UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PANAGOITIS SKORDALOS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00107-RDB)
Submitted: September 21, 2007 Decided: October 16, 2007
Before MOTZ, KING, and GREGORY, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
W. Warren Hamel, VENABLE, LLP, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Gregory Welsh, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Panagoitis Skordalos appeals from his conviction and 180-
month sentence for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000).* Skordalos contends
that his waiver of the right to appeal his sentence, which was
included in his plea agreement, was not knowing and voluntary
because he was not provided notice that the waiver covered
imposition of the mandatory minimum sentence of fifteen years
pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e) (2000). Skordalos further asserts that the district court
erred in determining that his prior convictions for resisting
arrest and accessory after the fact to murder qualified as violent
felonies for purposes of the ACCA. Finally, Skordalos claims that
his trial counsel was ineffective in failing to adequately advise
him on the likely application of the ACCA and the fifteen-year
mandatory minimum sentence, and that counsel did not raise adequate
objections at sentencing regarding his prior felony convictions.
The Government has moved to dismiss the appeal on the ground that
Skordalos validly waived his right to appeal. Upon review of the
*
Following Skordalos’ notice of appeal, the Government filed
a motion to dismiss, asserting that in light of the appellate
waiver agreed to by Skordalos as part of his plea agreement, there
was no basis to challenge the sentence imposed. Upon review of
Skordalos’ notice of appeal, this court deferred action on the
motion to dismiss, as Skordalos raised an ineffective assistance of
counsel claim that was not foreclosed by the terms of the appellate
waiver. See United States v. Skordalos, No. 06-5087 (4th Cir. Mar.
27, 2007) (unpublished).
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record, we grant the motion to dismiss in part and dismiss the
appeal of the district court’s determination that Skordalos
qualified as an armed career criminal. As for the remaining
claims, we deny the motion to dismiss, but nonetheless affirm
Skordalos’ conviction and sentence.
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990) (waiver upheld as
voluntarily and intelligently made). Whether a defendant has
waived his right to appeal is an issue of law subject to de novo
review. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
A waiver will preclude appeal of a specific issue if the record
establishes that the waiver is valid and that the issue is within
the scope of that waiver. United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994). The validity of a waiver depends on
whether the defendant knowingly and intelligently agreed to waive
the right to appeal. Id. at 732. This determination is based on
the totality of the circumstances, including the adequacy of the
plea colloquy and the experience and conduct of the defendant.
United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).
Skordalos claims that the Government’s motion to dismiss
should be denied on the ground that his waiver of the right to
appeal was not knowing or voluntary. Skordalos asserts that
neither the plea agreement nor the Fed. R. Crim. P. 11 colloquy
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adequately notified him that the waiver encompassed any appeal of
the mandatory minimum sentence imposed pursuant to the ACCA or a
“substantially increased sentence” based on his criminal history
category. During the Rule 11 plea colloquy, the district court
asked Skordalos if he understood the appellate rights he was
surrendering. Skordalos conferred with his attorney and asked the
court to repeat its explanation, and the court informed him that he
had waived any right to appeal from a sentence within or below an
advisory guideline range resulting from an adjusted base offense
level of 30. Skordalos conferred with counsel a second time and
told the court that he understood the waiver provision. The
district court again went over the terms, and Skordalos stated that
he understood. Both attorneys agreed with the court’s explanation
of the waiver.
Skordalos notes that the district court incorrectly used
the term “criminal history” in place of “total offense level” at
one point in explaining the waiver. However, this verbal mixup is
not a ground for relief, especially in light of the fact that the
district court accurately explained the waiver provision in the
sentences immediately preceding and following its erroneous
statement. While Skordalos claims that he had expressed
uncertainty at the hearing as to the import of the waiver, the
record reflects that he twice conferred with counsel on this issue
and stated to the court that he understood the terms of the waiver.
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Therefore, we find that the explanation of the appellate waiver was
adequate.
Skordalos also claims that the district court’s
explanation of the appellate waiver did not apprise him of the
impact his criminal history would have on his guidelines range or
that the waiver also covered any determination as to his status as
an armed career criminal and the resulting mandatory minimum.
However, the district court addressed these issues during the
hearing, informing Skordalos that “there is no agreement as to your
criminal history,” and detailing at length how his past criminal
convictions could affect his sentence. Skordalos also stated that
he had discussed the Sentencing Guidelines with his attorney and
that he understood his criminal history would be a major factor in
determining his sentence. The district court also addressed
Skordalos’ possible status as an armed career criminal, as well as
the consequences of such a finding, at multiple points during the
hearing.
Skordalos claims the district court should have
explicitly informed him that the appellate waiver encompassed any
appeal of the imposition of a mandatory minimum sentence, as the
180-month mandatory minimum cut off most of the lower guidelines
range for offense level 30. With a criminal history category V,
and in the absence of a statutory mandatory minimum, the guidelines
range would be between 151 and 188 months. However, the terms of
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the appellate waiver provided that Skordalos waived his right to
appeal from any sentence within or below the guidelines range
resulting from an offense level of 30. The district court also
noted this point during the plea colloquy, reading the text of the
relevant portion of the plea agreement to Skordalos and asking him
if he understood, to which he replied in the affirmative. The
district court also addressed, at length, the fact that Skordalos
could be subject to a mandatory minimum sentence based on his
criminal history.
While the district court did not explicitly state that
the armed career criminal determination was covered by the
appellate waiver, such specificity was not required, as the broad
terms of the appellate waiver certainly took this matter into
account. Skordalos was aware that he was facing a possible 180-
month mandatory minimum sentence based on his criminal history, and
that his appellate waiver barred any appeal from any sentence
within a guidelines range resulting from an offense level of 30.
Given Skordalos’ offense level of 30, the guidelines range was 180
months - the mandatory minimum sentence for an armed career
criminal - to 188 months. Skordalos was sentenced at the bottom of
that range. To the extent that Skordalos’ claim relates to the
validity of his plea waiver, we affirm his conviction. See Attar,
38 F.3d at 733 n.2. To the extent Skordalos is actually
challenging his sentence, rather than the voluntariness of his
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plea, the appeal is barred by the waiver provision. Accordingly,
the district court’s determination that Skordalos’ prior
convictions for resisting arrest and accessory to murder after the
fact qualified as violent felonies is not reviewable on appeal.
Skordalos’ remaining claims relate to alleged ineffective
assistance on the part of his trial counsel. A claim of
ineffective assistance of counsel should be raised in a 28 U.S.C.
§ 2255 (2000) motion rather than on direct appeal, unless the
record conclusively demonstrates ineffective assistance. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (internal
citations and quotations omitted). Such a claim cannot be fairly
adjudicated on direct appeal where the appellant has not raised the
issue before the district court and there is no statement from
counsel on the record. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). There is no conclusive evidence in the
record to support Skordalos’ ineffective assistance claims.
Therefore, Skordalos’ claims should be raised as part of a § 2255
motion rather than on direct appeal.
Accordingly, we grant the Government’s motion to dismiss
Skordalos’ appeal of his sentence, deny the Government’s motion to
dismiss Skordalos’ appeal as to his challenges to the voluntariness
of his appellate waiver and the effectiveness of his trial counsel,
and affirm as to those claims. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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