UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5006
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AKINYEMI OLUFEMI BAMISAIYE, a/k/a Yemi Olufemi Bamisaiye,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:08-cr-00281-RWT-2)
Submitted: February 15, 2011 Decided: March 18, 2011
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
G. Godwin Oyewole, LAW OFFICE OF G. GODWIN OYEWOLE, McLean,
Virginia, for Appellant. Rod J. Rosenstein, United States
Attorney, David I. Salem, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Akinyemi Olufemi Bamisaiye pled guilty, pursuant to a
written plea agreement, to one count of mail fraud in violation
of 18 U.S.C. § 1341 (2006), and one count of money laundering in
violation of 18 U.S.C. § 1957 (2006). The district court
calculated Bamisaiye’s total offense level under the U.S.
Sentencing Guidelines Manual (2008) at 23 and his criminal
history in Category I, resulting in a Guidelines imprisonment
range of 46 to 57 months. The district court sentenced
Bamisaiye to 52 months’ imprisonment. Bamisaiye appeals and
asserts that the appeal waiver in his plea agreement is not
enforceable because his plea of guilty was not knowing and
voluntary. The Government asserts that the appeal waiver of his
right to appeal his sentence is valid and enforceable and bars
consideration of his sentencing claims. We dismiss in part and
affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v.
Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005). 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
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agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks omitted).
Generally, if the district court fully questions a
defendant at the Fed. R. Crim. P. 11 proceeding regarding the
waiver of his right to appeal, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). However, an appeal waiver does not bar the
appeal of a sentence imposed in excess of the statutory maximum
or a challenge to the validity of a guilty plea. See General,
278 F.3d at 399 n.4. Nor does it bar an appeal raising issues
not within the scope of the waiver. See United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). Our review of the record
leads us to conclude that Bamisaiye knowingly and voluntarily
waived the right to appeal his sentence. * Accordingly, the
waiver is valid. We have reviewed Bamisaiye’s claims of
sentencing error and conclude that they fall within the waiver’s
scope. Accordingly, we dismiss the appeal with respect to
Bamisaiye’s claims challenging his sentence.
Although Bamisaiye’s appeal waiver insulates his
sentence from appellate review, the waiver does not preclude our
*
Pursuant to the plea agreement’s appeal waiver, Bamisaiye
agreed to waive his right to appeal from any sentence within or
below the advisory Guidelines range resulting from an adjusted
offense level of 23.
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consideration of any challenges to the validity of his
conviction. Bamisaiye contends that his conviction was in
violation of due process due to several instances of ineffective
assistance of counsel. Claims of ineffective assistance of
counsel generally are 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 claims in a 28 U.S.C.A. § 2255 (West Supp. 2010)
motion. Id. An exception exists where the record conclusively
establishes ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Because the
record in this case does not conclusively establish ineffective
assistance of counsel, we find that Bamisaiye’s claims in this
regard are not cognizable in this appeal.
Accordingly, we affirm Bamisaiye’s conviction and
dismiss the appeal of his sentence. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before the court and argument would
not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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