ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4312
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER J. RUFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00335-HEH-1)
Submitted: May 31, 2011 Decided: June 7, 2011
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Elizabeth S. Wilson, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher J. Ruffin appeals from his conviction and
240-month sentence following his guilty plea to one count of
manufacturing and possessing with intent to distribute
marijuana, in violation of 21 U.S.C. § 841 (2006); and one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2006). Ruffin’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating that there were no meritorious issues for appeal, but
questioning the validity of his appellate waiver and whether the
district court complied with Fed. R. Crim. P. 11 in accepting
Ruffin’s guilty plea. Ruffin filed a pro se supplemental brief
alleging ineffective assistance of counsel and challenging the
substantive reasonableness of his sentence. * The Government
filed a responding brief arguing that Ruffin waived his right to
appeal his conviction. Finding Ruffin validly waived the right
to appeal his conviction and sentence, we dismiss his appeal as
to the Rule 11 and sentencing claims. As to the ineffective
assistance claim, which is not encompassed by the waiver, we
affirm.
*
We granted rehearing in this Anders case to correct a
clerical error and allow Ruffin the opportunity to file a pro se
supplemental brief. He has taken that opportunity.
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A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. General, 278
F.3d 389, 400-01 (4th Cir. 2002). Whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. Manigan, 592 F.3d at 626.
Our review of the record leads us to conclude that
Ruffin knowingly and voluntarily waived the right to appeal his
conviction and sentence. Both Ruffin’s counseled challenge to
the district court’s acceptance of his guilty plea and his pro
se challenge to the substantive reasonableness of his sentence
fall within the scope of the waiver. We therefore dismiss
Ruffin’s appeal as to these claims.
Finally, Ruffin’s pro se claim that counsel rendered
ineffective assistance must be considered in a post-conviction
proceeding brought pursuant to 28 U.S.C.A. § 2255 (West Supp.
2010), unless the appellate record conclusively establishes that
counsel was constitutionally deficient. See United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010); United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because we
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find no such conclusive evidence, we decline to consider this
claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no unwaived and meritorious
issues. We therefore dismiss Ruffin’s appeal in part and affirm
in part. This court requires that counsel inform Ruffin, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Ruffin 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 Ruffin. 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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