UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO W. MADDOX,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:08-cr-00090-IMK-JSK-1)
Submitted: March 9, 2010 Decided: April 13, 2010
Before KING, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William L. Pennington, Morgantown, West Virginia, for Appellant.
John Castle Parr, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo W. Maddox pleaded guilty to distribution of
cocaine base, in violation of 21 U.S.C. § 841(a) (2006), and
possession of a firearm after having been convicted of a crime
punishable by more than one year, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court sentenced Maddox to
eighty-four months of imprisonment and Maddox now appeals. His
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising several issues but stating that there
are no meritorious issues for appeal. Maddox filed a pro se
supplemental brief raising additional issues. * The Government
has filed a motion to dismiss the appeal based on Maddox’s
waiver of his right to appeal. For the reasons that follow, we
dismiss the appeal of Maddox’s sentence and affirm his
convictions.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews
the validity of an appellate waiver de novo, and will enforce
the waiver if it is valid and the issue appealed is within the
*
We have considered the claims raised in Maddox’s pro se
brief and conclude that the claims lack merit.
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scope thereof. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. 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 and citation omitted).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Fed. R.
Crim. P. 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005);
United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
We have reviewed the record and conclude that Maddox knowingly
and intelligently entered into the plea agreement and understood
the appeal waiver.
Accordingly, Maddox waived the right to appeal his
sentence and the manner in which it was determined and we thus
grant in part the Government’s motion to dismiss the appeal.
The appellate waiver does not, however, preclude us from
considering Maddox’s remaining claims. Therefore, we deny the
motion to dismiss in part.
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In the Anders brief, counsel questions whether the
Government made a promise not contained in the plea agreement
regarding the sentence Maddox would receive. This claim,
however, is unsupported by the record. Counsel also questions
whether the plea should be set aside as unknowing and
involuntary based on alleged clerical errors in the record, on
Maddox’s misunderstanding of the charges against him, and on the
manner in which the factual basis was established at the Rule 11
hearing.
Because Maddox did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. See United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). Furthermore, there is a strong
presumption that a defendant’s guilty plea is binding and
voluntary if he has received an adequate Fed. R. Crim. P. 11
hearing. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.
1995); see Blackledge v. Allison, 431 U.S. 63, 74 (1977)
(finding that statements made during a plea hearing “carry a
strong presumption of verity”). Our review of the record
discloses that the district court fully complied with Rule 11.
We conclude, therefore, that the district court did not err in
accepting Maddox’s guilty plea as knowing and voluntary.
Counsel next questions whether the Government
retaliated against Maddox for filing a motion to dismiss and a
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suppression motion by seeking a superseding indictment. This
claim, however, is based on a flawed factual premise and is
therefore without merit. Counsel also questions the validity of
the search warrant obtained to search Maddox’s residence.
However, Maddox waived the right to appeal this issue by
pleading guilty. See Menna v. New York, 423 U.S. 61, 62-63
(1975); Tollett v. Henderson, 411 U.S. 258, 267 (1973) (when
defendant pleads guilty voluntarily, he waives challenges to
deprivations of constitutional rights occurring prior to guilty
plea).
Finally, counsel questions whether Maddox’s trial
counsel was ineffective. To prove a claim of ineffective
assistance of counsel, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). With respect to the first prong, “the
defendant must show that counsel’s performance fell below an
objective standard of reasonableness.” Id. at 688. In
addition, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. Under the second prong of the
test in the context of a conviction following a guilty plea, a
defendant can show prejudice only by demonstrating “a reasonable
probability that, but for counsel’s errors, he would not have
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pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
This court may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We have
thoroughly reviewed the record and conclude that it does not
conclusively demonstrate that Maddox’s trial counsel rendered
ineffective assistance. We accordingly decline to consider this
claim on direct appeal.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we grant the Government’s motion to
dismiss as to Maddox’s sentence, deny the motion as to Maddox’s
convictions, and affirm Maddox’s convictions. This court
requires that counsel inform Maddox, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Maddox 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 Maddox.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
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