UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMARUS MARQUIS SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00059-LHT-4)
Submitted: May 26, 2010 Decided: June 23, 2010
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamarus Marquis Sutton appeals his guilty plea,
pursuant to a plea agreement, for conspiracy to possess with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 846 (2006). On appeal, Sutton contends that the district
court erred in sentencing Sutton without conducting a hearing or
inquiry into Sutton’s claims of innocence during the sentencing
hearing. Additionally, Sutton contends that his trial attorney
was ineffective in failing to move to withdraw Sutton’s plea or
take any other action after Sutton’s claim of innocence during
sentencing. We affirm.
In its brief, the Government contends that the plea
waiver contained in Sutton’s plea agreement precludes Sutton’s
challenge to the district court’s failure to inquire as to
Sutton’s guilt. Whether a defendant effectively waived his
right to appeal pursuant to a plea bargain is an issue of law
that is reviewed de novo. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). Where the government seeks to enforce an
appeal waiver and the appellant does not contend that the
government is in breach of its plea agreement, a waiver will be
enforced if the record shows the waiver is valid and the
challenged issue falls within the scope of the waiver. Id. An
appeal waiver is valid if it is “the result of a knowing and
intelligent decision to forgo the right to appeal.” United
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States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citations omitted). To decide
whether a defendant’s waiver results from a knowing and
intelligent decision, a court must examine “‘the particular
facts and circumstances surrounding that case, including the
background, experience and conduct of the accused.’” United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Generally, if the
district court fully questions a defendant at his Fed. R. Crim.
P. 11 proceeding regarding the waiver of his right to appeal,
the waiver is both valid and enforceable. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). An appeal waiver
does not preclude challenges to a sentence on the ground that it
exceeds the statutory maximum or is based on a constitutionally
impermissible factor like race, or claims concerning a violation
of the Sixth Amendment right to counsel in proceedings following
the guilty plea. Id. After reviewing the record, we find that
Sutton knowingly and voluntarily waived his appeal rights, and
this issue falls within the scope of the waiver. Accordingly,
this issue is barred by Sutton’s plea agreement.
In his second claim, Sutton alleges that his attorney
was ineffective in failing to take any action after Sutton’s
claim of innocence during sentencing. Because this claim
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concerns a violation of Sutton’s right to counsel, this issue is
not barred by the appeal waiver and may proceed.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. See 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 his claim in a 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). An exception to this general rule exists when the
record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King,
119 F.3d at 295.
In order to succeed on a claim of ineffective
assistance, defendant must show that: (1) counsel’s performance
fell below an objective standard of reasonableness; and
(2) counsel’s deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under
the first prong of Strickland, a defendant must demonstrate that
counsel’s performance was unreasonable under “prevailing
professional norms.” Id. at 688. We “indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. Generally, to
satisfy the second prong of Strickland, a defendant “must show
that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
After review, we conclude that the record does not
conclusively establish that Sutton’s counsel was ineffective.
Accordingly, this issue is not cognizable on direct appeal, but
must be pursued, if at all, in an appropriate motion for post-
conviction relief.
Therefore, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately expressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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