UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KSENIA STEKOLSTSIKOVA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:09-cr-00003-MSD-TEM-18)
Submitted: July 14, 2010 Decided: July 21, 2010
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Paul G. Watson, IV, PAUL G. WATSON, IV, P.C., Eastville,
Virginia, for Appellant. Stephen Westley Haynie, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ksenia Stekolstsikova appeals from her conviction and
twenty-month sentence entered pursuant to her guilty plea to
conspiracy to defraud the United States. Counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious grounds for appeal but
questioning whether the sentence was unreasonably long. In her
pro se supplemental brief, Stekolstsikova asserts that the
presentence report (“PSR”) contained errors, that the court
improperly considered her co-conspirators’ sentences when
choosing the appropriate sentence, and that her attorney was
ineffective during the sentencing hearing. The Government filed
a motion to dismiss the appeal on the basis of the appellate
waiver contained in Stekolstsikova’s plea agreement.
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). On appeal, Stekolstsikova
does not challenge the validity of her appellate waiver. She
argues only that certain claims are not foreclosed by the
waiver. Our independent review of the record supports the
conclusion that Stekolstsikova voluntarily and knowingly waived
her right to appeal as part of the decision to plead guilty
rather than go to trial. Thus, we conclude that the waiver is
valid and enforceable.
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However, as noted by Stekolstsikova, even a valid
waiver does not waive all appellate claims. Specifically, a
valid appeal waiver does not preclude a challenge to a sentence
on the ground that it exceeds the statutory maximum or is based
on a constitutionally impermissible factor such as race, arises
from the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel, or relates to claims
concerning a violation of the Sixth Amendment right to counsel
in proceedings following the guilty plea. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). The only claim
raised by Stekolstsikova that falls outside the scope of her
appellate waiver is her assertion that counsel was ineffective
during her sentencing hearing. In addition, we are charged
under Anders with reviewing the record for unwaived error.
Thus, we grant the Government’s motion to dismiss in part and
dismiss the claim raised by counsel, as well as the remaining
claims in Stekolstsikova’s pro se brief. We deny the motion to
dismiss with regard to Stekolstsikova’s ineffective assistance
claim, as well as any unwaived claims discovered during our
Anders review.
In her claim of ineffective assistance of counsel at
the sentencing hearing, Stekolstsikova asserts that her counsel
withdrew objections to the PSR without her consent. She lists
certain alleged factual errors in the PSR, but she fails to show
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how pursuing these objections would have altered her Guidelines
range or her actual sentence. In any event, claims of
ineffective assistance of counsel are generally 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 bring her claim in a 28 U.S.C.A. § 2255
(West Supp. 2010) motion. See id. An exception exists when the
record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
Our review of the record fails to conclusively
establish ineffective assistance. Thus, Stekolstsikova’s claim
is not cognizable on direct appeal. Moreover, our review of the
record did not disclose any unwaived, meritorious claims for
review. Accordingly, we affirm Stekolstsikova’s sentence. We
deny Stekolstsikova’s motion to substitute counsel.
This court requires that counsel inform his client, in
writing, of her 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
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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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