UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4441
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREMAYNE K. GRAHAM, a/k/a Kiki,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:03-cr-01092-HMH-10)
Submitted: April 24, 2008 Decided: May 6, 2008
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Jessica Salvini, Greenville, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Deborah Brereton
Barbier, Mark C. Moore, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina; Leesa Washington, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tremayne K. Graham pled guilty pursuant to a written plea
agreement to conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846
(2000); possession with intent to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000);
conspiracy to launder money, in violation of 18 U.S.C.A.
§§ 1956(h), 1957 (West 2000 & Supp. 2007); aiding and abetting the
maintenance of a stash house, in violation of 18 U.S.C. § 2 (2000),
21 U.S.C.A. § 856(a)(1) (West 1999 & Supp. 2007); and failing to
appear before the court as required by the conditions of pretrial
release, in violation of 18 U.S.C. § 3146(a)(1) (2000). The
district court sentenced Graham to life imprisonment, and Graham
timely appealed.
The Government moved to dismiss the appeal prior to the
submission of briefs, contending the appeal was barred by the
appeal waiver contained in the plea agreement. We deferred action
on the motion to dismiss and reinstated the briefing schedule.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting there are no meritorious issues for
appeal but suggesting the Government breached the plea agreement
and the district court erroneously found Graham breached the plea
agreement and imposed an improper sentence. Graham filed a pro se
supplemental brief raising similar issues as well as claiming
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unfair treatment by the Government and ineffective assistance of
counsel. The Government declined to file a responding brief.
In the plea agreement, Graham waived the right to contest
either the conviction or the sentence on appeal or in any
post-conviction action, except for claims of prosecutorial
misconduct or ineffective assistance of counsel. Graham argues the
district court erroneously found Graham breached the plea agreement
and contends the Government was the breaching party. A party’s
waiver of the right to seek appellate review is not enforceable
when the opposing party breaches the plea agreement. United
States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001).
When a party failed to raise in the district court the
issue of whether the plea agreement was breached, this Court
reviews the issue for plain error. United States v. McQueen, 108
F.3d 64, 65-66 & n.1 (4th Cir. 1997) (citing United States v. Fant,
974 F.2d 559, 565 (4th Cir. 1992)). The parties agreed to certain
stipulations amounting to a total offense level of forty, but these
stipulations were binding on the Government only if Graham complied
with all terms of the plea agreement. As the Government amply
demonstrated at sentencing, Graham made false, incomplete, and
misleading statements to federal agents, thereby breaching the plea
agreement. Because of Graham’s violations, the Government was not
bound to its obligations under the plea agreement and could seek a
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greater sentence without breaching the agreement. Graham therefore
fails to demonstrate plain error in the district court’s findings.
Graham also contends the district court erroneously
refused to credit him for acceptance of responsibility and failed
to require the Government to file a motion for downward departure.
As discussed above, Graham agreed to waive his right to challenge
his convictions and sentence on all claims except prosecutorial
misconduct and ineffective assistance of counsel. We will uphold
a waiver of appellate rights if the waiver is valid and the issue
raised is within the scope of the waiver. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). Having determined the
Government did not breach the plea agreement, we find Graham’s
valid appeal waiver forecloses his challenge to the sentence.
In his pro se supplemental brief, Graham first alleges
the Government treated him unfairly by calling a co-defendant to
testify at the sentencing hearing. We construe this allegation as
a claim of prosecutorial misconduct, which falls outside the scope
of the appeal waiver provision. The claim, though reviewable, is
meritless, as the conduct complained of did not infect the
proceedings with unfairness amounting to a denial of due process.
See United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).
Graham’s pro se supplemental brief also alleges
ineffective assistance of counsel, another claim outside the scope
of the waiver. Claims of ineffective assistance of counsel are not
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generally cognizable on direct appeal unless ineffective assistance
conclusively appears on the record. See United States v. James,
337 F.3d 387, 391 (4th Cir. 2003). Graham fails to make this
showing. Accordingly, we decline to consider this issue on direct
appeal. Should Graham wish to do so, he may pursue this claim in
an appropriate motion for post-conviction relief.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
Accordingly, we grant the Government’s pending motion to dismiss
the appeal of the claims attacking Graham’s sentence, which are
barred by the valid and enforceable appeal waiver provision in the
plea agreement, and deny the motion as to the remaining claims. We
affirm Graham’s convictions and sentence to the extent Graham
raises claims outside the scope of the waiver provision. We
further deny Graham’s motion for appointment of new counsel and for
oral argument.
This court requires that counsel inform Graham, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Graham 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 Graham. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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