United States v. Reed

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4934

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

BRYANT WILLIAM REED,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00276-BO-1)

Submitted: June 1, 2010 Decided: July 26, 2010

Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. Anne Margaret Hayes, William Miller
Gilmore, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Bryant William Reed pled guilty, pursuant to a plea

agreement, to conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. §§ 1951, 2 (2006); using and carrying a

firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c) (2006); and possession of

ammunition after having been convicted of a crime punishable by

more than one year of imprisonment, in violation of 18 U.S.C.

§ 922(g) (2006). Prior to sentencing, the Government moved for

a downward departure pursuant to U.S. Sentencing Guidelines

Manual § 5K1.1 (2008). The district court sentenced Reed to a

total of 260 months of imprisonment, which was below the

Guidelines range.

On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which she states that there

are no meritorious issues for appeal, but questions whether the

sentence is procedurally unreasonable because the district court

failed to adequately explain how the sentence provided Reed with

individualized sentencing based on accurate facts. In his pro

se supplemental brief, Reed asserts that counsel was ineffective

and that he did not commit a robbery and is not guilty of the

§ 924(c) charge, but pled guilty on counsel’s advice. The

Government has moved to dismiss Reed’s appeal based upon a

waiver of appellate rights in his plea agreement.

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This court reviews the validity of a waiver de novo,

United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000),

and will uphold a waiver of appellate rights if the waiver is

valid and the issue being appealed is covered by the waiver.

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A

waiver is valid if the defendant’s agreement to the waiver was

knowing and voluntary. United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,

167 (4th Cir. 1991).

To determine whether a waiver is knowing and

intelligent, this court examines “the totality of the

circumstances, including the experience and conduct of the

accused, as well as the accused’s educational background and

familiarity with the terms of the plea agreement.” United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation marks omitted). Generally, if a district court fully

questions a defendant regarding the waiver of appellate rights

during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.

Wessells, 936 F.2d at 167-68. In this case, Reed does not

assert that his waiver was not voluntary, and our review of the

record leads us to conclude that Reed’s waiver of his right to

appeal was knowing and voluntary and should be enforced to

preclude any review of potential sentencing error. Reed’s

waiver does not, however, include a waiver of his right to

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appeal his conviction, or to assert claims of ineffective

assistance of counsel.

Our review of the record leads us to conclude that the

claims that can be discerned from Reed’s pro se supplemental

brief do not entitle him to relief. To the extent he claims

ineffective assistance of counsel, such claims 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 his claim in a

28 U.S.C.A. § 2255 (West Supp. 2010) motion. See id.; United

States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception

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 this case, the record

does not conclusively show that counsel’s performance was

deficient. To the extent that Reed claims he is actually

innocent of the § 924(c) charge, his claim is squarely

contradicted by his statements in the plea hearing, his

signature on the plea agreement, and his allocution at

sentencing.

Accordingly, we deny the Government’s motion to

dismiss in part and affirm Reed’s conviction. We grant the

motion to dismiss with regard to any potential sentencing error

that may be revealed by our review pursuant to Anders. In

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accordance with Anders, we have reviewed the entire record in

this case and have found no meritorious issues for appeal that

are not encompassed by the appeal waiver. This court requires

that counsel inform Reed, in writing, of the right to petition

the Supreme Court of the United States for further review. If

Reed 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

Reed.

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