UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4934
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed in part, dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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.
2
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
3
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
4
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
5