UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4074
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HOWARD WILLIAM LEDFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Dennis L. Howell,
Magistrate Judge. (1:09-mj-00066-DLH-1)
Submitted: July 14, 2010 Decided: July 26, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Ignacia S. Moreno, Assistant Attorney General, Shennie Patel,
John L. Smeltzer, Robert J. Lundman, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard William Ledford pled guilty, pursuant to a plea
agreement, to two counts of violating the Lacey Act, 16 U.S.C.A.
§§ 3372(a)(2)(B), 3373(d)(2) (West Supp. 2010), by knowingly
transporting, selling, receiving, acquiring and purchasing
ginseng in violation of North Carolina law. The district court
sentenced Ledford to twelve months’ imprisonment, one year of
supervised release, and a $50,000 fine. On appeal, Ledford
argues that the district court erred in finding itself bound by
the plea agreement in determining Ledford’s sentence, and that
he received ineffective assistance of counsel.
The Government asserts that Ledford validly waived the
right to appeal his sentence in the plea agreement. Whether a
defendant effectively waived his right to appeal pursuant to a
plea bargain is an issue of law that we review 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 the 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 States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks omitted). To
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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 “sufficiently explained the waiver to the
defendant” at his Fed. R. Crim. P. 11 proceeding, the waiver is
both valid and enforceable. See United States v. Manigan, 592
F.3d 621, 627 (4th Cir. 2010). 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. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005).
Our review of the record leads us to conclude that
Ledford knowingly and voluntarily waived the right to appeal his
sentence. See Blick, 408 F.3d at 169. Moreover, the sentencing
challenges Ledford raises on appeal fall within the scope of the
waiver. Therefore, we decline to address these claims.
Next, Ledford alleges that he received ineffective
assistance of counsel in the negotiation and execution of his
plea agreement. Claims of ineffective assistance of counsel
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“generally are 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). 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. United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). As this
record does not conclusively establish that Ledford’s counsel
was ineffective, we decline to consider his allegation of
ineffective assistance of counsel at this juncture. The claim
may be raised, however, in a § 2255 motion.
For the reasons stated above, we affirm Ledford’s
conviction and sentence. 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
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