UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4622
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDREY SAVELYEV,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:09-cr-00118-RGD-DEM-1)
Submitted: January 25, 2011 Decided: February 8, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, P.C., Virginia Beach, Virginia, for Appellant.
Stephen Westley Haynie, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrey Savelyev appeals from his conviction and
twenty-four month sentence entered pursuant to his guilty plea
to conspiracy to defraud the United States in violation of 18
U.S.C. § 371 (2006). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that there
are no meritorious grounds for appeal but questioning whether
Savelyev knowingly and voluntarily waived his right to appeal,
and whether the court properly ruled on the obstruction of
justice sentencing enhancement. In his pro se supplemental
brief, Savelyev asserts that he received ineffective assistance
of counsel. The Government filed a motion to dismiss the appeal
on the basis of the appellate waiver contained in Savelyev’s
plea agreement.
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). Our independent review of
the record supports the conclusion that Savelyev voluntarily and
knowingly waived his right to appeal. Thus, we conclude that
the waiver is valid and enforceable.
However, even a valid waiver does not waive all
appellate claims. Specifically, a valid appeal waiver does not
preclude a challenge to a sentence on the ground that it exceeds
the statutory maximum or is based on a constitutionally
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impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
guilty plea. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). The only claim raised by Savelyev that falls
outside the scope of his appellate waiver is his assertion that
counsel was ineffective. In addition, we are charged under
Anders with reviewing the record for unwaived error. Thus, we
grant the Government’s motion to dismiss in part and dismiss the
claims raised by counsel in his Anders brief. We deny the
motion to dismiss with regard to Savelyev’s ineffective
assistance claim.
Although Savelyev’s claim of ineffective assistance of
counsel is not barred by the terms of his appellate waiver, we
nevertheless cannot entertain it. Ineffective assistance of
counsel claims 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 such a claim in a 28 U.S.C.A. § 2255 (West
Supp. 2010) motion. See id. An exception exists when the
record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). The
record before us fails to conclusively establish ineffective
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assistance. Thus, Savelyev’s claim is not cognizable on direct
appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no unwaived and meritorious issues
for appeal. We therefore dismiss in part and affirm in part.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client 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 the client. 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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