UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CONRAD WAYNE DICKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:05-cr-00131-BO-1)
Submitted: January 14, 2011 Decided: February 11, 2011
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Conrad Wayne Dickerson pled guilty, pursuant to a
written plea agreement, to possession with intent to distribute
a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006). He was sentenced to 130 months’ imprisonment. This
appeal timely followed.
Dickerson’s attorney first submitted a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that, in
his view, there were no meritorious grounds for appeal, but
questioning whether counsel was ineffective for failing to
object to the relevant conduct determination made by the
probation officer and adopted by the district court. In the
course of our Anders review, we identified two nonfrivolous
issues — (1) whether the district court committed plain error in
conducting Dickerson’s Fed. R. Crim. P. 11 hearing; and (2)
whether the district court committed procedural error in failing
to explain the reasons for the 130-month sentence it imposed —
and directed the parties to submit supplemental briefs
addressing those issues. Briefing is now complete, and this
case is ripe for disposition.
We first turn to the ineffective assistance of counsel
argument raised in counsel’s Anders brief. Unless an attorney’s
ineffectiveness is conclusively apparent on the face of the
record, ineffective assistance claims are not generally
2
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008); United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999) (providing standard and noting that
ineffective assistance of counsel claims generally should be
raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)).
Because we find no conclusive evidence on the record that
counsel rendered ineffective assistance, we decline to consider
this claim on direct appeal.
We next consider the validity of Dickerson’s guilty
plea. Prior to accepting a guilty plea, a trial court must
conduct a plea colloquy in which it informs the defendant of,
and determines that the defendant comprehends, the nature of the
charge to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he relinquishes by pleading guilty. Fed. R. Crim. P. 11(b);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
There were several omissions in Dickerson’s plea
colloquy. First, Dickerson was not advised that his statements
at the hearing could be used in a prosecution for perjury, as
required by Fed. R. Crim. P. 11(b)(1)(A). The district court
did not particularize the nature of the offense to which
Dickerson was pleading guilty, as required by Fed. R. Crim. P.
11(b)(1)(G). Further, the district court made only cursory
mention of Dickerson’s appellate waiver, thus failing to discuss
3
the particular terms of the waiver and to question Dickerson to
ensure his understanding of those terms. See Fed. R. Crim. P.
11(b)(1)(N). The district court also failed to inform Dickerson
that it would consult the advisory Sentencing Guidelines and the
statutory sentencing factors in determining his sentence, and
that it had the authority to vary from the Sentencing
Guidelines. Id. at (b)(1)(M). Finally, the district court
neglected to inform Dickerson of its obligation to impose a
special assessment. Id. at (b)(1)(L).
Because Dickerson did not move to withdraw his guilty
plea or otherwise object to these omissions, this court’s review
is for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.
2009) (stating standard of review for unpreserved Rule 11
error). To establish plain error, Dickerson “must show: (1) an
error was made; (2) the error is plain; and (3) the error
affects substantial rights.” Massenburg, 564 F.3d at 342-43.
To demonstrate impact on his substantial rights, Dickerson must
show that, but for the Rule 11 errors, individually or
collectively, he would not have pled guilty. See United States
v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Even if such
error is found, “[t]he decision to correct the error lies within
our discretion, and we exercise that discretion only if the
error seriously affects the fairness, integrity or public
4
reputation of judicial proceedings.” Massenburg, 564 F.3d at
343 (internal quotation marks omitted).
Although he identifies many of the aforementioned
omissions, Dickerson’s primary contention appears to be that he
would not have pled guilty had he known the court would
determine, at sentencing, that his offense involved the
distribution of seven grams of crack cocaine (as opposed to
powder cocaine). We reject this argument as it erroneously
conflates the guilty plea and sentencing proceedings, which are
distinct. The voluntariness of a defendant’s decision to plead
guilty cannot turn on the court’s sentencing determinations. We
further conclude there is nothing in the record to indicate
that, but for the district court’s omissions in the Rule 11
hearing, Dickerson would not have pled guilty. Dickerson thus
fails to satisfy the challenging burden of establishing plain
error. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). Accordingly, we affirm Dickerson’s conviction.
Finally, we turn to Dickerson’s challenge to the
procedural reasonableness of his sentence. In its supplemental
brief, the Government moves to dismiss this aspect of
Dickerson’s appeal as precluded by the appellate waiver
contained in Dickerson’s plea agreement. For the reasons that
follow, we grant the Government’s motion and dismiss the appeal
as to this issue.
5
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews
the validity of an appellate waiver de novo, and will enforce
the waiver if it is valid and the issue appealed is within the
scope thereof. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. To
determine whether a waiver is knowing and intelligent, this
court examines the background, experience, and conduct of the
defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). Generally, if the district court fully
questions a defendant regarding the waiver during the Rule 11
plea colloquy, the waiver is both valid and enforceable. United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
Ultimately, however, the issue is “evaluated by reference to the
totality of the circumstances.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002).
The primary issue in this case is whether the waiver
is knowing and voluntary in light of the district court’s
failure to meaningfully discuss it on the record. Dickerson’s
plea agreement contained a broad waiver-of-rights provision in
6
which Dickerson waived his right “to appeal whatever sentence is
imposed,” so long as the sentence was within the advisory
Guidelines range. This clear and unambiguous waiver was set
forth in Dickerson’s plea agreement, which Dickerson signed.
Dickerson testified at his Rule 11 hearing that he had read the
plea agreement and discussed it with his lawyer. Dickerson, who
was then twenty years old, had completed the tenth grade and was
literate in English; further, there were no issues as to his
competency. Finally, although the court did not detail the
terms of the waiver or question Dickerson to ensure he
understood those terms, it did inform Dickerson that he had
waived his right to appeal.
We recognize that the sufficiency of the district
court’s explanation of a waiver is an “important factor” in
determining whether the waiver was knowingly and intelligently
accepted, see Manigan, 592 F.3d at 627, and that there was no
substantive explanation here. However, in light of the totality
of the circumstances, we conclude Dickerson knowingly and
intelligently agreed to the appellate waiver. See General, 278
F.3d at 400-01. As the waiver is valid and Dickerson’s
challenge to the reasonableness of his within-Guidelines
sentence falls soundly within the scope of the waiver, we will
enforce the waiver to grant the Government’s motion to dismiss.
See Blick, 408 F.3d at 169.
7
For these reasons, we affirm the district court’s
judgment as to Dickerson’s conviction, grant the Government’s
motion to dismiss as to Dickerson’s appeal of his sentence, and
dismiss that aspect of this appeal. In accordance with Anders,
we have reviewed the record and find no other meritorious
issues. This court requires that counsel inform Dickerson, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Dickerson 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 Dickerson.
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
8