UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEROME FRIPP,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00275-RBH-1)
Submitted: December 28, 2009 Decided: January 25, 2010
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Rose
Mary Sheppard Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerome Fripp pled guilty to using and carrying a
firearm during a drug trafficking offense, which resulted in the
murder of Vincent Wilson, and aiding and abetting another person
in the crime, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A), (j)
(2006). The district court sentenced Fripp to twenty-five years
of imprisonment, based upon the parties’ stipulation in the plea
agreement. See Fed. R. Crim. P. 11(c)(1)(C). On appeal,
counsel has filed an Anders ∗ brief, stating that there are no
meritorious issues for appeal but suggesting that the district
court failed to comply with Fed. R. Crim. P. 11 in accepting
Fripp’s guilty plea. Fripp has filed a pro se supplemental
brief challenging the voluntariness of his guilty plea and
asserting that counsel provided ineffective assistance. The
Government has moved to dismiss the appeal based upon Fripp’s
waiver of appellate rights. We affirm in part and dismiss in
part.
Although counsel identifies no error in the plea
colloquy, Fripp asserts in his pro se supplemental brief that he
did not knowingly and voluntarily enter his guilty plea. Our
review of the record leads us to conclude that the district
court ensured Fripp’s guilty plea was knowing and voluntary and
∗
Anders v. California, 386 U.S. 738 (1967).
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supported by a sufficient factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Thus,
Fripp’s claim that his guilty plea was involuntary is belied by
his sworn statements at the plea hearing. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Moreover, the district court
substantially complied with Rule 11 in accepting Fripp’s plea,
and the court’s failure to inform Fripp that “the agreed
disposition will be included in the judgment,” see Fed. R. Crim.
P. 11(c)(4), did not amount to plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing
standard of review).
Turning to the Government’s assertion that Fripp
waived the right to appeal his conviction and sentence, a
defendant may waive the right to appeal if that waiver is
knowing and intelligent. United States v. Poindexter, 492 F.3d
263, 270 (4th Cir. 2007). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th
Cir. 1991). Our de novo review of the record convinces us that
the waiver-of-appellate-rights provision in the plea agreement
is valid and enforceable. See United States v. Blick, 408 F.3d
162, 168 (4th Cir. 2005) (stating standard of review).
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With regard to the scope of the waiver, Fripp’s
challenge to the voluntariness of his guilty plea is not barred
by the waiver provision. We therefore deny the Government’s
motion to dismiss in part and affirm the conviction on the
ground that Fripp voluntarily entered his guilty plea. Although
Fripp does not challenge his sentence on appeal, any sentencing
claim that would have been revealed by our review pursuant to
Anders is barred by the waiver-of-appellate-rights provision in
the plea agreement. We therefore grant the Government’s motion
to dismiss in part and dismiss this portion of the appeal.
Finally, Fripp asserts in his supplemental pro se
brief that counsel provided ineffective assistance. Because
this claim falls within the exception to the waiver-of-
appellate-rights provision in the plea agreement, Fripp may
raise it on appeal. However, “[i]neffective assistance claims
are generally not cognizable on direct appeal . . . unless it
conclusively appears from the record that defense counsel did
not provide effective representation.” United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Counsel’s ineffectiveness
does not conclusively appear from the record. We therefore find
that Fripp’s ineffective assistance claims are not cognizable on
direct appeal.
In accordance with Anders, we have thoroughly examined
the entire record for any potentially meritorious issues not
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covered by the waiver and have found none. We therefore affirm
Fripp’s conviction and dismiss the appeal of his sentence. This
court requires that counsel inform his client, in writing, of
the right to petition the Supreme Court of the United States for
further review. If the client 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 the client. 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;
DISMISSED IN PART
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