UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4404
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERIC WAYNE ZUSPAN,
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-00081-IMK-JSK-1)
Submitted: January 31, 2011 Decided: March 7, 2011
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Andrew R. Cogar, Assistant United
States Attorney, Clarksburg, West Virginia, Betsy C. Jividen,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Wayne Zuspan appeals from his conviction and
thirty-seven-month sentence entered pursuant to his guilty plea
to conspiracy to commit wire fraud, in violation of 18 U.S.C.
§ 371 (2006), and possession of a firearm and ammunition by a
prohibited person, in violation of 18 U.S.C. § 922(g) (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 Zuspan knowingly and
voluntarily pleaded guilty. In what this court construes as his
pro se supplemental brief, Zuspan asserts that he received
ineffective assistance of counsel. The Government has filed a
motion to dismiss the appeal on the basis of the appellate
waiver contained in Zuspan’s plea agreement. Zuspan’s counsel
opposes this motion.
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 Zuspan 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
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the statutory maximum or is based on a constitutionally
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); United States v. Craig, 985 F.2d 175, 178 (4th Cir.
1993). The only claim raised by Zuspan 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 Zuspan’s ineffective assistance claim.
Although Zuspan’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
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record before us fails to conclusively establish ineffective
assistance. Thus, Zuspan’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 the appeal 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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