UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4914
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUDITH D. WARD,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:07-cr-00030-JPB)
Submitted: March 17, 2008 Decided: April 3, 2008
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Kevin D. Mills, MILLS & WAGNER, PLLC, Martinsburg, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Judith D. Ward appeals her conviction and sentence of
eighteen months’ incarceration following her guilty plea to five
counts of aiding in the preparation of a fraudulent tax return, in
violation of 26 U.S.C. § 7206 (2000). On appeal, Ward’s attorney
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), questioning whether her appellate waiver is valid and
enforceable, whether her sentence was unreasonable, whether her
counsel provided ineffective assistance, and whether the district
court erred by accepting Ward’s guilty plea, but concluding there
are no meritorious issues for review. Although Ward was informed
of her opportunity to file a pro se supplemental brief, she has not
done so. After a thorough review of the record, we dismiss in part
and affirm in part.
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). To determine whether a waiver is
knowing and intelligent, this court examines the totality of the
circumstances, including the accused’s experience, conduct,
educational background, and familiarity with the terms of the plea
agreement. United States v. General, 278 F.3d 389, 400 (4th Cir.
2002). Generally, if the district court fully questioned a
defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable. See
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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 waived her right to appeal
is a question of law that this court reviews de novo. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of
the record leads us to conclude that Ward knowingly and voluntarily
waived the right to appeal the reasonableness of her sentence.
Thus, we dismiss this part of Ward’s appeal.
However, an appellate waiver does not preclude appeals
from the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel or claims concerning a violation
of the Sixth Amendment right to counsel in proceedings following
the guilty plea. Johnson, 410 F.3d at 151. Nevertheless, we
conclude that any claim of ineffective assistance of counsel Ward
wishes to pursue must be brought in a collateral proceeding under
28 U.S.C. § 2255 (2000) because ineffective assistance does not
conclusively appears on the face of the record. See United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Further,
we have reviewed the record and find the district court complied
with the mandates of Rule 11 in accepting Ward’s guilty plea.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we dismiss in part and
affirm in part. This court requires counsel inform his client, in
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writing, of her right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy of
the motion was served on the client. 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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