UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4904
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL T. MONAHAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00010-JFA-1)
Submitted: November 22, 2010 Decided: December 23, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Winston D. Holliday, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel T. Monahan appeals his conviction and sentence
entered after he pled guilty to mail fraud, in violation of 18
U.S.C. § 1341 (2006). The Government seeks to enforce the
appeal waiver contained in the plea agreement and moves to
dismiss the appeal. Having found that Monahan voluntarily and
knowingly entered into the plea agreement and that the appeal
waiver was enforceable, we deferred action on the Government’s
motion until receipt of the briefs in order to determine whether
Monahan raised any issues that fell outside the scope of the
appeal waiver. Having received the briefs and considered the
issues, we grant the motion to dismiss the appeal as to those
issues within the scope of the appeal waiver. With regard to
the remaining issue raised by Monahan, we affirm the conviction
and sentence.
Monahan’s plea agreement contained the following
waiver of his appellate rights:
The Defendant is aware that 18 U.S.C. § 3742 and 28
U.S.C. § 2255 afford every defendant certain rights to
contest a conviction and/or sentence. Acknowledging
those rights, the Defendant, in exchange for the
concessions made by the Government in this Plea
Agreement, waives the right to contest either the
conviction or the sentence in any direct appeal or
other post-conviction action, including any
proceedings under 28 U.S.C. § 2255. This waiver does
not apply to claims of ineffective assistance or
prosecutorial misconduct.
2
Monahan’s claims that the district court erred in determining
for sentencing purposes the amount of loss, imposing a
sentencing enhancement for use of sophisticated means and not
understanding the discretion it had at sentencing, are within
the scope of the appeal waiver. Because we are enforcing the
appeal waiver, we dismiss the appeal as to those issues.
Monahan’s claim that counsel was ineffective for
having him enter a plea agreement that he claims was invalid is
not ready for review. While this claim falls outside the scope
of the appeal waiver, claims of ineffective assistance of
counsel generally are 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
generally must bring his claims in a 28 U.S.C.A. § 2255 (West
Supp. 2010) motion. Id.; United States v. Hoyle, 33 F.3d 415,
418 (4th Cir. 1994). However, ineffective assistance claims are
cognizable on direct appeal if the record conclusively
establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at
295. Because the record does not conclusively establish
Monahan’s counsel was ineffective, we will not review this
claim.
Accordingly, we grant the Government’s motion to
dismiss as to those issues within the scope of the appeal waiver
3
and affirm the 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.
DISMISSED IN PART;
AFFIRMED IN PART
4