UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5088
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AIAH MOMOI GBONDO,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:06-cr-00235-PJM-1)
Submitted: October 18, 2010 Decided: November 5, 2010
Before MOTZ, KING, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Steven G. Berry, Bethesda, Maryland, for Appellant. James
Andrew Crowell, IV, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aiah Momoi Gbondo pled guilty, pursuant to a written
plea agreement, to one count of aiding and abetting bank fraud,
in violation of 18 U.S.C. §§ 2, 1344 (2006), and one count of
aiding and abetting aggravated identity theft, in violation of
18 U.S.C. §§ 2, 1028A(a)(1) (2006). The district court
calculated Gbondo’s total offense level under the U.S.
Sentencing Guidelines Manual (“USSG”) (2006) at nineteen and his
criminal history in Category I, resulting in a Guidelines
imprisonment range of thirty to thirty-seven months’
imprisonment on the bank fraud count. Gbondo was also subject
to a statutorily-mandated consecutive sentence of two years’
imprisonment on the identity theft count. The district court
sentenced Gbondo to thirty-seven months’ imprisonment on the
bank fraud count and a consecutive sentence of two years’
imprisonment on the identity theft count.
On appeal, Gbondo’s counsel has filed an Anders 1 brief,
stating that there are no viable grounds for appeal, but
questioning whether: Gbondo’s appeal waiver is valid and
enforceable; the evidence is sufficient to support Gbondo’s
convictions; the convictions should be overturned as a result of
entrapment and a questionable search warrant; trial counsel
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Anders v. California, 386 U.S. 738 (1967).
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rendered ineffective assistance; and Gbondo’s sentence is
unreasonable. The Government has moved to dismiss the appeal in
part based on Gbondo’s waiver of appellate rights and in part
based on the lack of merit in the unwaived issues. Gbondo has
filed a pro se supplemental brief in which he questions whether
the district court erred in accepting his guilty plea and
whether trial counsel rendered ineffective assistance. We
dismiss in part and affirm in part.
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). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. See 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). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
Our review of the record leads us to conclude that
Gbondo knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
in part and dismiss the appeal of Gbondo’s sentence. Although
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Gbondo’s appeal waiver insulates his sentence from appellate
review, the waiver does not preclude our consideration of the
remaining claims Gbondo’s counsel 2 and Gbondo raise on appeal or
prohibit our review of Gbondo’s conviction pursuant to Anders.
Consequently, we deny the motion to dismiss in part.
Turning, then, to the unwaived claims, because Gbondo
did not move in the district court to withdraw his guilty plea,
the adequacy of the Fed. R. Crim. P. 11 hearing is reviewed for
plain error. See United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002). Our review of the transcript of the guilty
plea hearing leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
Gbondo’s guilty plea and that the court’s omissions did not
affect Gbondo’s substantial rights. Critically, the transcript
reveals that the district court ensured the plea was supported
by an independent factual basis and that Gbondo entered the plea
knowingly and voluntarily with an understanding of the
consequences. See United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991). Accordingly, we discern no plain error
in the district court’s acceptance of Gbondo’s guilty plea.
2
The Government moves to dismiss the claims raised by
counsel as meritless. This constitutes, in effect, a motion for
summary affirmance of the unwaived claims. This court reserves
such a motion for extraordinary circumstances not present here.
4th Cir. R. 27(f).
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Additionally, Gbondo’s knowing and voluntary guilty
plea constitutes an admission of the material elements of the
offenses, see McCarthy v. United States, 394 U.S. 459, 466
(1969), and waives non-jurisdictional errors, see Tollett v.
Henderson, 411 U.S. 258, 267 (1973). Furthermore, Gbondo’s
guilty plea waives his right to contest the factual merits of
the offenses. United States v. Willis, 992 F.2d 489, 490-91
(4th Cir. 1993).
Finally, as to counsel’s and Gbondo’s claims that
trial counsel rendered ineffective assistance, these claims are
more appropriately raised in a motion filed pursuant to
28 U.S.C.A. § 2255 (West Supp. 2010), unless counsel’s
ineffectiveness conclusively appears on the record. See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). After
review of the record, we find no conclusive evidence that
counsel rendered ineffective assistance, and we accordingly
decline to consider these claims on direct appeal.
In accordance with Anders, we have reviewed the
remainder of the record in this case and have found no
meritorious issues for review. We therefore affirm Gbondo’s
convictions and dismiss the appeal of his sentence. This court
requires that counsel inform Gbondo, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Gbondo requests that a petition be filed, but
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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 Gbondo.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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