UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4359
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TORRENCE LASHAWN HOWARD,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:07-cr-00260-FL-1)
Submitted: October 8, 2010 Decided: November 22, 2010
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torrence Lashawn Howard appeals the district court’s
judgment entered pursuant to his guilty plea, under a written
plea agreement, to carjacking, in violation of 18 U.S.C. § 2119
(2006), and using, carrying, and brandishing a firearm during
and in relation to a crime of violence. 18 U.S.C.A.
§ 924(c)(1)(A)(ii) (West Supp. 2010). On appeal, Howard claims
that the district court erred in (1) applying the two-level
sentencing enhancement pursuant to U.S. Sentencing Guidelines
Manual § 3B1.4 (2007); and (2) finding that Howard used a
juvenile in the commission of the crime under USSG § 3B1.4. The
Government filed a motion to dismiss based on an appeal waiver
provision in the plea agreement. Howard filed a response to the
motion to dismiss arguing that his waiver was not knowing and
intelligent and presenting for the first time a claim of
ineffective assistance of counsel, which he argues contributed
to his unknowing and unintelligent waiver and places his appeal
outside the scope of the waiver. In the alternative, Howard
argues that, even if the waiver is valid, its enforcement would
result in a miscarriage of justice.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo and will uphold a waiver
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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).
The issues raised in Howard’s opening brief are
encompassed by the scope of the waiver provision in which Howard
agreed to:
waive knowingly and expressly the right to appeal
whatever sentence is imposed on any ground, . . .
excepting a sentence in excess of the advisory
guideline range calculated at sentencing and an appeal
or motion based upon grounds of ineffective assistance
of counsel or prosecutorial misconduct not known to
the Defendant at the time of the Defendant’s guilty
plea.
Howard’s claims of error in sentencing are foreclosed by the
express terms of the waiver, and we dismiss the appeal as to
those claims.
We conclude that Howard’s claim of ineffective
assistance of counsel is not cognizable on direct appeal as
ineffective assistance does not conclusively appear on the
record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). Furthermore, enforcement of the valid waiver
provision does not result in a miscarriage of justice. See
United States v. Johnson, 410 F.3d 137, 152 n.2 (4th Cir. 2005);
United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004).
Therefore, we also dismiss Howard’s ineffective assistance of
counsel claim. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
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