UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5188
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL GEROD WESTBROOK,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:09-cr-00714-CMC-2)
Submitted: December 13, 2010 Decided: January 21, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. James Chris Leventis, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Gerod Westbrook pled guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute cocaine and cocaine base (crack). The statutory
mandatory minimum sentence applicable to Westbrook’s offense was
240 months. The applicable guidelines range was 360 months to
life imprisonment. The district court sentenced Westbrook to
360 months’ imprisonment.
On appeal, Westbrook’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no viable grounds for appeal, but questioning
whether Westbrook’s appeal waiver is valid and enforceable;
whether the district court erred by denying Westbrook a
reduction for acceptance of responsibility and Westbrook’s
motion for a downward variance in sentence; whether the United
States breached the plea agreement by not filing a motion for a
reduction in sentence based on Westbrook’s substantial
assistance; and whether claims that counsel below provided
ineffective assistance may be raised on direct appeal. The
Government has moved to dismiss the appeal based on Westbrook’s
waiver of his right to appeal. Westbrook opposes the motion,
noting that three of the five issues raised on appeal are not
within the scope of the waiver. He asserts that claims of
ineffective assistance of counsel and prosecutorial misconduct
2
are excepted from the appeal waiver, and therefore the appeal
should not be dismissed as to the challenges to the Government’s
potential breach of the plea agreement, counsel’s
ineffectiveness, and the validity of the appeal waiver.
Westbrook filed a supplemental pro se brief asserting that the
Government breached the plea agreement, that the court erred in
denying him the acceptance of responsibility reduction, and that
the plea was unknowing and involuntary. 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
Westbrook knowingly and voluntarily waived the right to appeal
his sentence. He has therefore waived review by this court of
3
his challenge to the district court’s denial of a variance
sentence and the denial of the reduction for acceptance of
responsibility. We therefore grant the Government’s motion to
dismiss in part and dismiss the appeal as to these issues and as
to Westbrook’s sentence. Although Westbrook’s appeal waiver
insulates his sentence from appellate review, the waiver does
not preclude our consideration of the remaining claims raised by
Westbrook and counsel, and does not prohibit our review of
Westbrook’s conviction pursuant to Anders. Consequently, we
deny the motion to dismiss in part.
Turning then, to the unwaived claims, because
Westbrook did not move in the district court to withdraw his
guilty plea, the adequacy of the Rule 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 plea
hearing leads us to conclude that the district court fully
complied with Rule 11 in accepting Westbrook’s guilty plea. The
court ensured that Westbrook understood the charge against him
and the potential sentence he faced; that he entered his plea
knowingly and voluntarily; and that the plea was supported by an
independent factual basis. 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 Westbrook’s
guilty plea.
4
Next, Westbrook and counsel argue that the Government
breached the plea agreement by failing to move for a downward
departure based on Westbrook’s cooperation with the authorities,
which they contend amounted to substantial assistance.
Westbrook has the burden of showing by a preponderance of the
evidence that the Government breached the plea agreement. See
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). The
determination of whether the defendant has provided substantial
assistance is within the Government’s discretion. Id. at 190.
The record in this case fails to show that Westbrook provided
substantial assistance. Additionally, the plea agreement did
not obligate the Government to move for such a departure, and
there is no evidence that the Government refused to make such a
motion based on any unconstitutional motive. See Wade v. United
States, 504 U.S. 181, 185-86 (1992) (holding that defendant must
make substantial threshold showing of improper motive to obtain
review of Government’s decision not to move for substantial
assistance departure). We find no breach of the plea agreement
by the Government’s decision not to move for a downward
departure.
The final claim asserted on appeal is that Westbrook
received ineffective assistance of counsel at the district court
level. Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal. These claims are
5
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. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); 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 not foreclosed by Westbrook’s appellate
waiver. We therefore affirm Westbrook’s conviction and dismiss
the appeal of his sentence. This court requires that counsel
inform Westbrook, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Westbrook 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 Westbrook. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
6
materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
7