UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4428
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ATUM N. MAMBE, a/k/a Michael Mambe, a/k/a Maxwell Tuum,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:07-cr-00164-WMN-1)
Submitted: January 30, 2009 Decided: February 17, 2009
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant. Kwame Jangha Manley, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Atum N. Mambe appeals his conviction and sentence
following a guilty plea to one count of mail fraud in violation
of 18 U.S.C. § 1341 (2006). Counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether:
(1) the district court failed to comply with Fed. R. Crim. P.
11 in accepting Mambe’s guilty plea; (2) the district court
erred in applying a two point enhancement for the use of
“sophisticated means” pursuant to U.S. Sentencing Guidelines
Manual § 2B1.1(b)(9) (2007); (3) Mambe’s trial counsel was
ineffective in recommending that he enter into the plea
agreement; and (4) the court erred in determining the amount of
restitution owed. Additionally, Mambe has filed a pro se
supplemental brief in which he essentially restates the claims
raised in his counseled brief and also questions whether his
sentence is too harsh. In response, the Government has filed a
motion to dismiss based on the waiver of appellate rights in
Mambe’s plea agreement.
This court reviews the validity of a waiver of
appellate rights de novo, United States v. Brown, 232 F.3d 399,
402-03 (4th Cir. 2000), and will apply the waiver if it 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
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valid if the 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.
We have reviewed the record in this case and determine
that Mambe’s plea was knowing and voluntary and that his waiver
was valid. The express terms of the waiver, however, preclude
an appeal only as to Mambe’s sentence resulting from an adjusted
base offense level of 22. Because the district court determined
that Mambe’s offense level was 22, his appeal of his sentence
is barred by his waiver of appellate rights. Therefore, we
dismiss that portion of his appeal.
Mambe also claims his trial counsel was ineffective.
Mambe’s claim of ineffective assistance is not barred by his
plea waiver. Nevertheless, we decline to address it on direct
appeal. Unless trial counsel’s ineffectiveness “conclusively
appears” on the record, it is not cognizable on direct appeal,
but must instead be raised in a post-conviction proceeding
pursuant to 28 U.S.C.A. § 2255 (West 2000 & Supp. 2008).
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003).
Because Mambe’s counsel’s ineffectiveness is not apparent on the
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record, Mambe must pursue this issue in an appropriate post-
conviction proceeding. Accordingly, we deny the Government’s
motion with respect to Mambe’s ineffective assistance claims and
affirm his conviction.
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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