UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR STEWART ELLERBEE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00326-D-1)
Submitted: October 23, 2008 Decided: November 14, 2008
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
James B. Craven, III, Durham, 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Unpublished opinions are not binding precedent in this circuit.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:
Victor Stewart Ellerbee appeals from his 228-month
sentence after pleading guilty to armed bank robbery, in
violation of 18 U.S.C. § 2113(a), (d) (2000). On appeal,
Ellerbee contends the district court erred in designating him as
a career offender and that he received ineffective assistance of
counsel. 1 In response, the Government has filed a motion to
dismiss Ellerbee’s appeal, asserting that pursuant to the
appellate waiver contained in his plea agreement, there is no
basis to challenge the sentence imposed. The Government also
contends there is no evidence in the record indicating that
Ellerbee’s attorney provided ineffective assistance.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2000). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990) (waiver
upheld as voluntarily and intelligently made). Whether a
defendant has waived his right to appeal is an issue of law
subject to de novo review. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). A waiver will preclude appeal of a
specific issue if the record establishes that the waiver is
1
Ellerbee has also filed a pro se supplemental brief in
which he claims his trial attorney committed fraud and asks this
court to review his sentence.
2
valid and that the issue is within the scope of that waiver.
United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994).
Ellerbee contends that his criminal history did not
justify designation as a career offender, as two of his prior
offenses should not have been considered separately under U.S.
Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). However,
this claim is squarely within the scope of the appellate waiver,
as Ellerbee waived his right to appeal his sentence, “including
any issues that relate to the establishment of the advisory
Guideline range.” See United States v. Blick, 408 F.3d 162,
172-73 (4th Cir. 2005). While Ellerbee reserved the right to
appeal a sentence imposed in excess of the established
Guidelines range, his sentence of 228 months was within the
Guidelines range of 188 to 235 months. Accordingly, Ellerbee’s
claim is barred by the appellate waiver.
Ellerbee also contends that he received ineffective
assistance of counsel. Ellerbee asserts that he would not have
entered into his plea agreement had he known that he could have
been classified as a career offender, as his trial attorney
allegedly failed to discuss this matter with him and led him to
believe that he would receive a sentence between 70 and 87
months. According to the terms of the plea agreement, claims of
ineffective assistance of counsel are not barred by the
appellate waiver. However, these claims should be raised in a
3
28 U.S.C. § 2255 (2000) motion rather than on direct appeal
unless the record conclusively demonstrates ineffective
assistance. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Such a claim cannot be fairly adjudicated on direct
appeal when the appellant has not raised the issue before the
district court and there is no statement from counsel on the
record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991). Because the existing record fails to conclusively
support Ellerbee’s assertions that counsel provided ineffective
assistance, any such claim must be raised as part of a § 2255
motion rather than on direct appeal. 2
Accordingly, we grant the Government’s motion to
dismiss as to Ellerbee’s sentencing claims. As for Ellerbee’s
claims that he received ineffective assistance of counsel, we
deny the Government’s motion to dismiss as to those claims, but
nonetheless affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are
2
Ellerbee also asks this court to issue a “new rule” that
appeal waivers do not serve the interests of justice and are not
enforceable. However, we have consistently upheld the
enforceability of appellate waivers. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (citation omitted).
4
adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
5