UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES W. PENLAND, SR.,
Defendant - Appellant.
No. 07-4201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES W. PENLAND, SR.,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:05-cr-00710)
Submitted: September 17, 2007 Decided: October 15, 2007
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Charles W. Penland, Sr., Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Charles Penland, Sr.,
appeals the criminal judgment (No. 06-5044) and forfeiture order
(No. 07-4201) the district court imposed followed his guilty plea
to conspiracy to distribute cocaine and methamphetamine, in
violation of 21 U.S.C. §§ 841, 846 (2000), and other offenses
stemming from Penland’s involvement in the underlying conspiracy to
distribute narcotics. Pursuant to the terms of the plea agreement,
the district court imposed a substantial forfeiture order and a
120-month sentence. Penland timely appealed. In response, the
Government has moved to dismiss the appeal on the basis of the
waiver of appellate rights contained in Penland’s plea agreement.
Penland, who proceeds on appeal pro se, subsequently filed an
informal brief, challenging his sentence and the forfeiture order,1
and arguing his attorney was ineffective. Both the Government’s
motion and Penland’s appeal are now ripe for adjudication. For the
reasons set forth below, we grant the Government’s motion to
dismiss in part, deny it in part, and affirm in part.
We first conclude that Penland has waived his right to
appeal either his sentence or the forfeiture order. A defendant
may, in a valid plea agreement, waive the right to appeal under 18
1
Penland’s challenges to his sentence include his claims that
the district court failed to address Penland’s objections to his
presentence report and that the district court improperly imposed
a term of supervised release.
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U.S.C. § 3742 (2000). United States v. Wiggins, 905 F.2d 51, 53
(4th Cir. 1990). Any such waiver must be made by a knowing and
intelligent decision to forgo the right to appeal. United States
v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). Whether a
defendant has effectively waived his right to appeal is an issue of
law this court reviews de novo. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). We will uphold a waiver of appellate
rights if the waiver is valid and the issue being appealed is
covered by the waiver. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
To determine whether a waiver is knowing and intelligent, this
court examines the background, experience, and conduct of the
defendant. Broughton-Jones, 71 F.3d at 1146. Generally, if the
district court fully questions a defendant regarding the waiver of
his right to appeal during the Fed. R. Crim. P. 11 plea colloquy,
the waiver is both valid and enforceable. United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991); Wiggins, 905 F.2d
at 53-54. 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).
The appellate waiver set forth in Penland’s plea
agreement provided that Penland waived his right “to contest either
the conviction or the sentence in any direct appeal or other post-
conviction action.” Penland also waived the right to challenge the
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forfeiture: “The Defendant agrees to waive all constitutional and
statutory challenges in any manner (including direct appeal, habeas
corpus, or any other means) to any forfeiture.” Because our review
of the record reveals that Penland knowingly and voluntarily waived
his right to appeal his sentence and the forfeiture order, we grant
the Government’s motion to dismiss Penland’s appeal to the extent
that it challenges those issues.2
Not all of Penland’s claims are barred from review; the
appellate waiver specifically exempted challenges predicated on
claims of ineffective assistance of counsel or prosecutorial
misconduct. Accordingly, we deny the motion to dismiss as to
Penland’s ineffective assistance claim. Ineffective assistance of
counsel claims, however, are not generally cognizable on direct
appeal unless counsel’s ineffectiveness “conclusively appears” on
the face of the record. United States v. James, 337 F.3d 387, 391
(4th Cir. 2003); 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. § 2255 (2000)). In his informal brief, Penland
asserts, in conclusory manner, that his attorney was ineffective
2
Penland attempts to end-run this result by couching his
challenge to the forfeiture order in terms of an alleged breach of
the plea agreement on the part of the Government. However, upon
closer review of this claim, we conclude that, despite being framed
as such, Penland is challenging the sum and substance of the
forfeiture order, an issue that falls squarely within the scope of
the appellate waiver.
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for failing to challenge the presentence report prepared by the
probation officer, for failing to file motions, and for failing to
properly argue the motions that were filed. Penland provides no
further details regarding any of these claims. We reject the
claims as legally insufficient because the record does not
conclusively establish that Penland’s attorney was ineffective.
In sum, we grant the Government’s motion to dismiss
Penland’s appeal of his sentence and the forfeiture order, deny the
Government’s motion to dismiss Penland’s claim that his trial
attorney provided ineffective assistance, and affirm as to that
claim.3 We further deny Penland’s pending motions to dismiss a
separate civil case in which he is a defendant, for summary
judgment, to add Penland’s wife, Mary Penland, as a party to the
present appeals, for the return of seized assets, and for an
injunction preventing his former counsel from discussing the case.
We also deny Penland’s several motions for additional time to find
new counsel, as one prior extension had been granted, and the
pending motions were all filed well after the extended period had
3
We have considered the issues raised in Penland’s informal
brief as well as in the multiple supplements Penland has filed, and
conclude that none of these issues warrants relief.
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expired. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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United States v. Penland
Combined Opinion