United States v. Savelyev

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4622

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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