UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD TERRELL WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:06-cr-00022-WCB)
Submitted: October 29, 2007 Decided: November 15, 2007
Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Robert E. Barrat, Martinsburg, West Virginia, for Appellant.
Sharon L. Potter, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On May 16, 2006, Donald T. Washington was charged with
possession with intent to distribute approximately 1.33 grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).
Washington entered a plea agreement with the United States, and on
August 21, 2006, Washington pled guilty to possession with intent
to distribute cocaine base. Washington’s plea agreement contained
a waiver of appellate rights.
Prior to Washington’s sentencing, the probation office
compiled a presentence report and calculated an advisory guidelines
range of 151-188 months’ of imprisonment. At sentencing, the
district court imposed a sentence of 156 months’ imprisonment.
On appeal, Washington has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he questions
whether he should have been determined to be a career offender and
whether his sentence is too long. Washington has also filed a pro
se supplemental brief. In his pro se brief, Washington alleges
four separate errors: (1) use of his prior convictions to enhance
the applicable statutory range violated his Sixth Amendment right
to a jury trial; (2) he was deprived of competent counsel; (3) his
career offender status overrepresents the seriousness of his
criminal history and likelihood of recidivism; and (4) the factors
in 18 U.S.C. § 3553(a) (2000) support a significantly lower
sentence than that recommended by his advisory guidelines range.
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In response, the Government has filed a brief invoking the waiver
of appellate rights in Washington’s plea agreement.
This Court reviews the validity of a waiver de novo,
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and 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). A waiver is valid if the
defendant’s agreement to the waiver was knowing and voluntary.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). Generally,
if a district court fully questions a defendant regarding his
waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy,
the waiver is valid. Wessells, 936 F.2d at 167-68.
Here, according to the terms of his plea agreement,
Washington waived the right to appeal any sentence within the
maximum provided in the statute of conviction or the manner in
which that sentence was determined on any ground whatever,
including those grounds set forth in Title 18, United States Code,
Section 3742. Washington’s sentence of 156 months is within the
statutory maximum of twenty years. 21 U.S.C.A. § 841(c) (West 2000
and Supp. 2007). Notably, Washington does not attack the validity
of his plea agreement or waiver of appellate rights. At
Washington’s Rule 11 hearing, the district court conducted a
thorough colloquy with Washington and specifically questioned him
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about whether he understood he was waiving his right to appeal.
The district court properly concluded that Washington’s plea was
freely and voluntarily made and accepted Washington’s plea. As
Washington knowingly and voluntarily waived his right to appeal and
as his sentencing claims fall squarely within the terms of his
appellate waiver, we dismiss Washington’s appeal.*
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore dismiss Washington’s appeal. This court requires that
counsel inform Washington, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Washington 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 Washington.
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
*
To the extent that Washington claims he received ineffective
assistance of counsel, his claim is not cognizable on direct
appeal. See United States v. Gastiaburo, 16 F.3 582, 590 (4th Cir.
1994). Rather, it must be pursued in an appropriate post-
conviction proceeding brought pursuant to 28 U.S.C. § 2255 (2000).
Accordingly, Washington’s ineffective assistance of counsel claim
must likewise be dismissed.
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United States v. Washington
Combined Opinion