UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00049-8-MU)
Submitted: October 19, 2007 Decided: November 1, 2007
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Henderson pled guilty to conspiracy to possess
with intent to distribute heroin, in violation of 21 U.S.C. § 846
(2000). In December 2004, the district court sentenced Henderson
as a career offender to 262 months of imprisonment. On appeal,
Henderson asserts that, in light of United States v. Booker, 543
U.S. 220 (2005), the district court violated his Sixth Amendment
rights by sentencing him as a career offender based upon prior
convictions that were neither charged in the indictment nor
admitted by him. He also contends that counsel provided
ineffective assistance by failing to object to his career offender
designation on Sixth Amendment grounds. The Government asserts
that Henderson validly waived the right to appeal his sentence in
the plea agreement and that his ineffective assistance claim fails
on the merits. We dismiss the appeal.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Amaya-Portillo, 423
F.3d 427, 430 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The question of whether a defendant validly
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waived his right to appeal is a question of law that we review de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that
Henderson knowingly and voluntarily waived the right to appeal his
sentence. Moreover, the Booker sentencing issue raised on appeal
falls within the scope of the waiver. See id. at 169-70, 173; see
also Johnson, 410 F.3d at 152-53.
Although the waiver provision in the plea agreement
precludes our review of the sentencing claim, the waiver contains
an exception for claims of ineffective assistance of counsel. This
court, however, “may address [claims of ineffective assistance] on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir.), cert. denied, 546 U.S. 1203 (2006). Because
we find that counsel’s ineffectiveness does not conclusively appear
from the record, we decline to address Henderson’s ineffective
assistance claim on direct appeal.
Accordingly, we dismiss Henderson’s appeal of his
sentence based upon Booker and, to the extent Henderson raises an
ineffective assistance claim, we decline to address that claim in
this appeal. 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
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