UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4606
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS PAYSOUR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00083-H)
Submitted: January 17, 2008 Decided: January 30, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Paysour pled guilty, pursuant to a written plea
agreement, to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2000). The
district court imposed the advisory guidelines sentence of 120
months’ imprisonment.
On appeal, Paysour’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal because Paysour’s
written plea agreement contains a waiver of appellate rights.
Nonetheless, the Anders brief questions whether Paysour’s sentence
was unreasonable. Paysour filed a pro se supplemental brief
arguing ineffective assistance of counsel and prosecutorial
misconduct. The Government has moved to dismiss the appeal based
on the appeal waiver. We grant the motion in part and dismiss the
appeal with regard to the sentencing issues raised. After a review
of the record under Anders, we affirm Paysour’s conviction as to
all other claims.
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). To assess the validity
of the waiver, this court examines the “totality of the
- 2 -
circumstances, including the experience and conduct of the accused,
as well as the accused’s educational background and familiarity
with the terms of the plea agreement.” United States v. General,
278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks and
citation omitted). 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).
In his pro se supplemental brief, Paysour contends that
his guilty plea, including the appeal waiver, was not voluntary.
Because Paysour did not move in the district court to withdraw his
guilty plea, any error committed during the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d 517,
526 (4th Cir. 2002). A defendant’s statements at a guilty plea
hearing are presumed true. See Blackledge v. Allison, 431 U.S. 63,
73-74 (1977). Unsupported subsequent allegations are insufficient
to overcome representations at the hearing. Id. at 74; see also
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); Via v.
Superintendent, Powhatan Corr. Ctr., 643 F.2d 167, 171 (4th Cir.
1981). Under the totality of the circumstances presented in the
record, we find Paysour’s appeal waiver knowing and voluntary, and
therefore enforceable.
- 3 -
The waiver expressly precluded Paysour from appealing any
sentence that was within or below the advisory guidelines range.
Because the sentence imposed was not above the advisory guidelines
range, any challenge to the sentence imposed, including the
sentencing issue raised in Paysour’s Anders brief, falls within the
scope of the waiver. Accordingly, we grant the Government’s motion
to dismiss Paysour’s appeal as to the sentencing claims raised.
The waiver’s enforceability does not completely dispose
of this appeal, however. The appeal waiver expressly permitted an
appeal based upon ineffective assistance or prosecutorial
misconduct not known to Paysour at the time of his guilty plea.
Accordingly, the waiver provision does not foreclose Paysour’s
right to appeal with respect to issues not covered by the waiver.
See United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).
In his pro se brief, Paysour offers four grounds upon
which he claims his trial counsel was constitutionally ineffective.
Claims of ineffective assistance of counsel generally are not
cognizable on direct appeal. United States v. King, 119 F.3d 290,
295 (4th Cir. 1997). Instead, to allow for adequate development of
the record, a defendant generally must bring his ineffective
assistance claims in a motion under 28 U.S.C. § 2255 (2000). See
id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An
exception exists where the record conclusively shows ineffective
assistance. United States v. Baldovinos, 434 F.3d 233, 239 (4th
- 4 -
Cir.), cert. denied, 546 U.S. 1203 (2006). Because the record does
not conclusively show that Paysour’s counsel was ineffective, we
decline to consider Paysour’s claims on direct appeal.
Finally, Paysour offers two grounds upon which he claims
prosecutorial misconduct. To prevail on a claim of prosecutorial
misconduct, a defendant must show (1) that the prosecutor’s remarks
and conduct were, in fact, improper and (2) that such remarks or
conduct prejudiced the defendant to such an extent as to deprive
the defendant of a fair trial. United States v. Allen, 491 F.3d
178, 191 (4th Cir. 2007). We find Paysour has failed to meet his
burden on either ground.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. We therefore affirm
Paysour’s conviction and dismiss as to his sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Paysour requests that such 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 Paysour.
- 5 -
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
- 6 -