UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5028
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH VAN SACH,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00003-IMK-JSK-1)
Submitted: October 19, 2010 Decided: January 28, 2011
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
L. Richard Walker, Senior Litigator, FEDERAL PUBLIC DEFENDER
OFFICE, Clarksburg, West Virginia, for Appellant. David Earl
Godwin, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Van Sach pled guilty, pursuant to a written
plea agreement, to aiding and abetting an assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 2, 113(a)(3)
(2006). He was sentenced to sixty months’ imprisonment. On
appeal, Van Sach’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
there are no meritorious issues for appeal, but questions
whether the district court erred in accepting Van Sach’s guilty
plea and in concluding that Van Sach’s plea was knowing,
intelligent, and voluntary; and whether counsel below was
ineffective. Van Sach has filed a pro se supplemental brief.
The Government has moved to dismiss Van Sach’s appeal based upon
a waiver of appellate rights in his plea agreement.
This court reviews the validity of a waiver de novo,
United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000),
and will uphold a waiver 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). A
waiver is valid if the defendant’s agreement to the waiver was
knowing and voluntary. United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,
167 (4th Cir. 1991).
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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 omitted). Generally, if a district court fully
questions a defendant regarding the waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.
Wessells, 936 F.2d at 167-68. In this case, our review of the
record leads us to conclude that Van Sach’s waiver of his right
to appeal was knowing and voluntary.
Because Van Sach did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). The record reveals that the district
court substantially complied with the requirements of Rule 11 in
accepting Van Sach’s guilty plea, and ensured that Van Sach’s
plea was knowing and voluntary and supported by a sufficient
factual basis. See United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991).
While Van Sach did execute an otherwise valid
appellate waiver at the time he entered his guilty plea, claims
of ineffective assistance of counsel are generally exempt from
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the ambit of such waivers. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005); United States v. Attar, 38 F.3d
727, 732 (4th Cir. 1994). Accordingly, we deny the motion to
dismiss in part because we do not agree that Van Sach has waived
his right to make ineffective assistance of counsel claims on
appeal.
That said, claims of ineffective assistance of counsel
are generally 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 must bring his
claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id. An
exception exists when the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999).
We have reviewed the record and conclude that
ineffective assistance of counsel is not present on its face.
The claim is therefore not cognizable on direct appeal.
Accordingly, we grant the Government’s motion to dismiss in
part, affirm in part, and dismiss in part. In accordance with
Anders, we have reviewed the entire record in this case and Van
Sach’s pro se supplemental brief and have found no meritorious
issues for appeal that are not encompassed by the appeal waiver.
This court requires that counsel inform Van Sach, in writing, of
the right to petition the Supreme Court of the United States for
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further review. If Van Sach 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 Van Sach. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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