UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARREN OLIVER ROBINSON, a/k/a Stretch, a/k/a
Desaun Talib Bethel,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-52)
Submitted: January 30, 2008 Decided: February 12, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
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Unpublished opinions are not binding precedent in this circuit.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:
Darren Oliver Robinson pled guilty, pursuant to a written
plea agreement, to possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2000). He
was sentenced to 202 months’ imprisonment. Robinson’s counsel has
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), concluding there are no meritorious issues for appeal, but
raising as potential issues (1) whether Robinson’s trial counsel
was ineffective by failing to investigate Robinson’s criminal
history; (2) whether Robinson’s trial counsel was ineffective by
failing to preserve an argument under United States v. Booker, 543
U.S. 220 (2005); and (3) whether Robinson was denied due process by
sentencing guidelines that provide for sentencing disparity of a
100:1 ratio of crack to powder cocaine. Robinson was advised of
his right to file a pro se supplemental brief, but has not done so.
The Government filed a responding brief invoking the waiver of
appellate rights in Robinson’s plea agreement and arguing his
ineffective assistance claims are not appropriate for direct
review.
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
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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,
Robinson waived “the right to appeal any sentence which is 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.” Robinson’s sentence of 202 months is within the
statutory maximum of twenty years. 21 U.S.C. § 841(b)(1)(C)
(2000). Notably, Robinson does not attack the validity of his plea
agreement or waiver of appellate rights. At Robinson’s Rule 11
hearing, the district court conducted a thorough colloquy with
Robinson and specifically questioned him on two separate occasions
about whether he understood he was waiving his right to appeal his
sentence. The district court properly concluded that Robinson’s
plea was freely and voluntarily made and accepted his plea. As
Robinson knowingly and voluntarily waived his right to appeal his
sentence and as his sentencing claim falls squarely within the
terms of his appellate waiver, we dismiss Robinson’s claim
pertaining to sentencing.
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Turning to the remaining Anders claims, Robinson’s claims
of ineffective assistance of counsel must be brought in a
collateral proceeding under 28 U.S.C. § 2255 (2000) unless it
conclusively appears from the face of the record that his counsel
was ineffective. See United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). Because the record does not conclusively
establish that trial counsel was ineffective, Robinson’s claims are
not cognizable on direct appeal.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment with respect to all
issues outside the scope of the waiver. This court requires that
counsel inform Robinson, in writing, of the right to petition the
Supreme Court of the United States for further review. If Robinson
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 Robinson. 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 IN PART;
AFFIRMED IN PART
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