UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4737
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYRONE EUGENE YATES,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:06-cr-00020-JPB-JES-1)
Submitted: February 24, 2009 Decided: May 4, 2009
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone Eugene Yates appeals from his conviction and
188-month sentence after pleading guilty pursuant to a plea
agreement to possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006). Yates’ counsel filed
an Anders brief, in which he states there are no meritorious
issues for appeal, acknowledges that the district court complied
with Fed. R. Crim. P. 11, and concedes that Yates’ plea was
“knowing, intelligent and voluntary.” Yates filed a pro se
supplemental brief challenging his career offender
classification.
The Government has moved to dismiss the appeal based
on the appellate waiver contained in Yates’ plea agreement.
Yates’ counsel asserts that the Government’s motion is
premature. Yates also opposes the Government’s motion in a pro
se filing, essentially asserting that because he did not know he
could be sentenced as a career offender, his plea was not
knowing and voluntary. Yates also suggests that his counsel was
ineffective for not arguing the invalidity of his sentence to
this court, and for not securing an exception to his appellate
waiver that would have allowed him to challenge his career
offender classification on appeal. We grant the motion to
dismiss in part, deny it in part, and affirm in part.
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A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). See United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). We review
the validity of an appellate waiver de novo, and will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of the
record reveals that Yates knowingly and voluntarily waived his
right to appeal his sentence.
We conclude, however, that Yates’ assertions that his
guilty plea was involuntary and that he was denied effective
assistance of counsel constitute exceptions to the appellate
waiver because the issues either cannot be waived by appellate
waiver or present “colorable” constitutional challenges. See,
e.g., United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005); United States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir.
1994). Moreover, Yates’ appellate waiver does not preclude an
appeal pertaining to his conviction. Accordingly, we deny the
Government’s motion to dismiss as to any claims not foreclosed
by the waiver. While we possess jurisdiction to consider the
excepted claims, we nonetheless find that none warrant vacatur.
As previously stated, the record confirms that the
district court conducted a thorough Rule 11 hearing, ensuring
that Yates’ plea was knowing and voluntary in all respects.
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Yates’ belated claim that he did not understand the consequences
of his plea is simply belied by the record. In addition, Yates’
claim that he was denied effective assistance of counsel does
not “conclusively appear” on the record and, accordingly, is not
cognizable on direct appeal. Yates may assert this claim in an
appropriate motion for postconviction relief. See United States
v. Benton, 523 F.3d 424, 435 (4th Cir.) (citation omitted),
cert. denied, 129 S. Ct. 490 (2008).
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 motion to dismiss the
appeal regarding Yates’ sentence, and deny the motion as to all
remaining claims. We nonetheless affirm the district court’s
judgment with regard to any claims not foreclosed by the waiver
provision.
This court requires counsel to inform Yates, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Yates 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 Yates. We dispense with
oral argument because the facts and legal contentions are
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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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