UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT ISADORE RICHARDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:05-cr-00040-JPB-JES-1)
Submitted: March 24, 2011 Decided: April 8, 2011
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Jacob A. Manning, DINSMORE & SHOHL, LLP, Wheeling, West
Virginia, for Appellant. Betsy C. Jividen, Acting United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Richardson pled guilty, pursuant to a written
plea agreement, to one count of distributing crack cocaine and
was sentenced to a 210-month term of imprisonment. On appeal,
Richardson’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether the
district court committed plain error in accepting Richardson’s
guilty plea. Richardson has filed a supplemental pro se brief
in which he raises the following claims: (1) the district court
erred by amending the indictment without presentment to a grand
jury; (2) the district court abused its discretion by proceeding
with the second indictment without resubmitting it to a grand
jury; (3) counsel was ineffective for failing to file a motion
to suppress; (4) counsel was ineffective for failing to appeal
Richardson’s designation as a career offender; and (5) the
district court abused its discretion in refusing to apply a 1:1
ratio of crack to powder cocaine at sentencing. In its reply
brief, the United States seeks to dismiss the appeal based on
the appellate waiver provision in the plea agreement.
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). We review the
validity of an appellate waiver de novo, and we will uphold a
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waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is valid if the defendant’s agreement to the waiver was knowing
and intelligent. Id. at 169. To determine whether a waiver is
knowing and intelligent, we examine “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 agreement.” United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks and citation omitted). Generally, if a district
court fully questions a defendant regarding the waiver of
appellate rights during the Federal Rule of Criminal Procedure
11 colloquy, and the record indicates that the defendant
understood the full significance of the waiver and was not
denied effective assistance of counsel, the waiver is valid.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
A review of the Rule 11 hearing transcript confirms
that Richardson knowingly and intelligently waived his right to
appeal. In his plea agreement, Richardson explicitly waived the
right to challenge his sentence on appeal, reserving only the
right to appeal based upon grounds of ineffective assistance of
counsel, prosecutorial misconduct, a sentence in excess of the
statutory maximum, or a sentence based on an unconstitutional
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factor. Richardson confirmed at his Rule 11 hearing that he
read and understood the plea agreement. The district court
conducted the colloquy required under Rule 11, ensuring that
Richardson understood the charges and potential penalties and
that Richardson was competent to enter the plea. We therefore
conclude that Richardson knowingly and intelligently pled guilty
and waived the right to appeal his sentence. Richardson’s claim
challenging the district court’s failure to apply a 1:1 ratio at
sentencing falls squarely within the scope of the waiver
provision; accordingly, we dismiss the appeal as to Richardson’s
sentence.
The waiver provision did not, however, waive
Richardson’s right to appeal his conviction. The first two
issues raised in Richardson’s supplemental pro se brief
challenge the validity of his conviction. However, Richardson
waived these claims by pleading guilty. A voluntary guilty plea
waives the right to challenge antecedent, nonjurisdictional
errors not logically inconsistent with the establishment of
guilt. See Menna v. New York, 423 U.S. 61, 62-63 (1975);
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Richardson’s third and fourth claims allege
ineffective assistance of counsel. However, unless an
attorney’s ineffectiveness is conclusively apparent on the face
of the record, ineffective assistance claims are not generally
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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). We find that
counsel’s ineffectiveness is not conclusively apparent on the
face of this record.
In accordance with Anders, we have thoroughly examined
the entire record for any potentially meritorious issues not
covered by the waiver and have found none. Therefore we affirm
Richardson’s conviction and grant the Government’s motion to
dismiss in part as to Richardson’s sentence. This court
requires that counsel inform Richardson, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Richardson 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 Richardson. 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
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