UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4651
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY LAMONT COBB,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:07-cr-01105-HMH-1)
Submitted: October 19, 2009 Decided: November 4, 2009
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Darren S. Haley, HALEY & PARKER, P.A., Greenville, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, A. Lance Crick, Jimmie Ewing, Assistant United States
Attorneys, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Lamont Cobb pled guilty, pursuant to a plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). He received a 120-
month sentence. On appeal, Cobb argues that the district court
erred by improperly calculating his offense level and that
counsel provided ineffective assistance at sentencing by failing
to object to the improper calculation.
The Government has moved to dismiss the appeal,
arguing it is barred by the appellate waiver included in the
plea agreement. Cobb responds that because the district court
failed to specifically question him about the appellate waiver
during the Fed. R. Crim. P. 11 hearing, his guilty plea was not
knowingly and voluntarily made. We disagree.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). 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 its terms. Id. at 169. “An appeal
waiver is not knowingly or voluntarily made if the district
court fails to specifically question the defendant concerning
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the 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 and citation omitted; emphasis added).
Ultimately, the validity of a plea waiver is
“evaluated by reference to the totality of the circumstances.”
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). We
have found that, when an appellate waiver is “unambiguous
and . . . plainly embodied in the plea agreement,” and the
defendant is competent, represented by counsel, and questioned
about whether he understands the provisions of the plea
agreement, the defendant knowingly and intelligently waives his
right to appeal his sentence, even where the waiver is not
specifically mentioned at the Rule 11 hearing. General, 278
F.3d at 400-01.
Here, the Rule 11 hearing established that Cobb was
forty-one years old and had completed high school. The language
of the appellate waiver is clear and unambiguous--Cobb “waive[d]
the right to contest either the conviction or sentence in any
direct appeal or other post-conviction action,” except for
claims of ineffective assistance of counsel or prosecutorial
misconduct. Cobb stated that he had adequate time to discuss
his case with his attorney and that he was satisfied with
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counsel’s representation. Because nothing in the record
indicates that Cobb failed to understand the full significance
of the appellate waiver, we find that Cobb’s decision to waive
his right to appeal was both knowing and intelligent. Cobb’s
claim that the district court improperly calculated his base
offense level falls squarely within the broad scope of the
appellate waiver and is barred from review on appeal.
Accordingly, we grant the Government’s motion to dismiss in
part, and dismiss the appeal to the extent Cobb challenges his
sentence.
Cobb’s second issue, that counsel was ineffective for
failing to challenge the calculation of his base offense level,
is not within the scope of the waiver, and we deny the motion to
dismiss as to this claim. However, claims of ineffective
assistance of counsel generally are not cognizable on direct
appeal. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Rather, to allow for adequate development of the record,
a defendant must ordinarily bring such claims in a 28 U.S.C.A.
§ 2255 (West Supp. 2009) motion, unless the appellate record
conclusively establishes counsel’s ineffectiveness. See id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
Because this appellate record does not conclusively establish
that counsel was constitutionally ineffective in failing to
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object to Cobb’s base offense level, the claim is not subject to
review on direct appeal.
Accordingly, we grant the Government’s motion to
dismiss in part and deny it in part. We dismiss the appeal of
Cobb’s sentence, and otherwise affirm the judgment of the
district court. 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.
AFFIRMED IN PART
AND DISMISSED IN PART
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