UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BASHIRI ALGBALA POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (2:06-cr-00013-BO-1)
Submitted: October 20, 2008 Decided: November 6, 2008
Before KING, SHEDD, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Slade C. Trabucco, SULLIVAN, TRABUCCO & WAGONER, LLP, Wilmington,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal filed pursuant to Anders v. California,
386 U.S. 738 (1967), Bashiri Algbala Powell appeals his conviction
and the 240-month sentence he received upon pleading guilty to one
count of distributing fifty grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2000). In response, the
Government has filed a motion to dismiss, asserting the waiver of
appellate rights included in Powell’s plea agreement precludes
appeal of his sentence. Powell filed a pro se supplemental brief,
arguing the Government breached the plea agreement and that he
received ineffective assistance of counsel. For the reasons set
forth below, we affirm in part and grant the Government’s motion to
dismiss in part.
We first conclude that Powell has waived his right to
appeal his sentence and its calculation. A defendant may, in a
valid plea agreement, waive the right to appeal under 18 U.S.C.
§ 3742 (2000). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). We review the validity of an appellate waiver de novo, and
will enforce the waiver if it is valid and the issue appealed is
within the scope thereof. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). An appeal waiver is valid if the defendant
knowingly and intelligently agreed to the waiver. Id. at 169. “An
appeal waiver is not knowingly or voluntarily made if the district
court fails to specifically question the defendant concerning the
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waiver provision . . . during the [Fed. R. Crim. P.] 11 colloquy
and the record indicates that the defendant did not otherwise
understand the full significance of the waiver.” United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal quotation
marks omitted). Ultimately, however, the issue is “evaluated by
reference to the totality of the circumstances.” United States v.
General, 278 F.3d 389, 400 (4th Cir. 2002).
The appellate waiver set forth in Powell’s plea agreement
provided that Powell waived his right:
[T]o appeal whatever sentence is imposed, including any
issues that relate to the establishment of the advisory
Guideline range, reserving only the right to appeal from
a sentence in excess of the applicable advisory Guideline
range that is established at sentencing, . . . excepting
an appeal . . . based upon grounds of ineffective
assistance of counsel or prosecutorial misconduct not
known to the Defendant at the time of the Defendant’s
guilty plea.
Our review of the record reveals that Powell knowingly and
voluntarily waived his right to appeal his sentence. The waiver’s
language is clear and unambiguous, and the district court reviewed
the terms of the waiver with Powell at the Fed. R. Crim. P. 11
hearing to ensure he understood it. Accordingly, we conclude the
waiver is valid and enforceable.
In an attempt to avoid the impact of the appellate
waiver, Powell asserts the Government breached the plea agreement
by failing to advocate at sentencing for the drug quantity
stipulated to in the plea agreement.
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A plea agreement is breached when a government promise
that induces the plea goes unfulfilled. Santobello v. New York,
404 U.S. 257, 262 (1971). “In interpreting plea agreements,” the
court is guided by contract law to ensure “each party receives the
benefit of the bargain.” United States v. Jordan, 509 F.3d 191,
195 (4th Cir. 2007). A criminal defendant asserting the Government
breached a plea agreement bears the burden of proving such a breach
by a preponderance of the evidence. United States v. Snow, 234
F.3d 187, 189 (4th Cir. 2000). Because Powell did not raise this
issue in the district court, this court reviews for plain error.
United States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th Cir. 1997).
In that situation, the appellant must show not only that the plea
agreement was breached, but also that “the breach was so obvious
and substantial that failure to notice and correct it affected the
fairness, integrity or public reputation of the judicial
proceedings.” Id. at 66 (internal quotation marks, alterations,
and citation omitted).
We have reviewed Powell’s claim, and find the
Government’s silence at sentencing does not amount to a breach of
the plea agreement. See United States v. Smith, 140 F.3d 1325,
1327 (10th Cir. 1998) (“The sentencing judge may exercise his
discretion at sentencing without transforming the prosecutor’s
silence into a breach of the [plea] agreement.”); see also United
States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001) (finding
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Government’s failure to verbally recommend particular sentence did
not amount to a breach of the plea agreement because recommendation
was included in the presentence report).
Because the issues raised on appeal — a challenge to the
two-level enhancement for possession of a dangerous weapon and the
drug quantity attributable to Powell — fall within the scope of the
waiver that Powell knowingly and voluntarily accepted, the waiver
will be enforced to preclude review of Powell’s sentence.
Accordingly, we grant the Government’s motion to dismiss Powell’s
appeal to the extent that it challenges his sentence.
Powell challenges his conviction by arguing his attorney
provided him ineffective assistance by assuring him the court would
rely upon the stipulated drug quantity in determining the drug
quantity attributable to Powell. Unless an attorney’s
ineffectiveness is conclusively apparent on the face of the record,
ineffective assistance claims are not generally addressed on direct
appeal. United States v. James, 337 F.3d 387, 391 (4th Cir. 2003);
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28 U.S.C.
§ 2255 (2000)). The record in this case falls short of this
exacting standard.
In accordance with Anders, we have reviewed the entirety
of the record and found no meritorious issues. The district court
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conducted a thorough Rule 11 hearing prior to accepting Powell’s
guilty plea. Accordingly, we grant the Government’s motion to
dismiss, in part, and dismiss Powell’s challenge to his sentence.
We deny, in part, the motion to dismiss and affirm the remainder of
the district court’s judgment.
We require that counsel inform Powell, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Powell 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 Powell. We dispense with oral argument because the
facts and legal contentions are adequately set forth in the
materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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