UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4388
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KATRINA GOULD, a/k/a Trina,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:10-cr-00087-FDW-8)
Submitted: March 26, 2014 Decided: April 2, 2014
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Daniel K. Dorsey, Washington, D.C., for Appellant. Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Katrina Gould pleaded guilty to conspiracy to possess
with intent to distribute cocaine base (“crack”), in violation
of 21 U.S.C. § 846 (2006). The district court sentenced Gould
to 120 months of imprisonment and she now appeals. Appellate
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), questioning whether trial counsel rendered
ineffective assistance. Gould filed a supplemental pro se brief
raising additional issues. * We initially ordered that the
parties submit supplemental briefs on several sentencing issues.
However, in its supplemental brief, the Government has asserted
Gould’s waiver of her appellate rights contained in the plea
agreement. For the reasons that follow, we affirm Gould’s
conviction in part and dismiss in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2012). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The question of
*
We have thoroughly considered the arguments raised in
Gould’s pro se supplemental brief and conclude that they lack
merit.
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whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (citation omitted). 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 the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
We have thoroughly reviewed the record and conclude
that the district court substantially complied with the
requirements of Rule 11. We further conclude that Gould’s
waiver of her appellate rights was knowing and intelligent. The
appellate waiver included Gould’s right to appeal any issues
related to her conviction or the sentence imposed, except claims
of prosecutorial misconduct or ineffective assistance of
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counsel. Therefore, Gould has waived appellate review of her
conviction and sentence.
Appellate counsel questions whether Gould’s trial
counsel rendered ineffective assistance for failing to challenge
the prior conviction used to enhance the statutory penalties
applicable to Gould. To prove a claim of ineffective assistance
of counsel, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Under the second prong of the test in
the context of a conviction following a guilty plea, a defendant
can show prejudice only by demonstrating “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Moreover, this court
may address a claim of ineffective assistance on direct appeal
only if the lawyer’s ineffectiveness conclusively appears on the
record. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).
Under the statute, If a defendant is convicted under
§ 846 after sustaining one or two prior convictions for felony
drug offenses, the defendant is subject to increased statutory
penalties. 21 U.S.C. § 841(b)(1)(A)-(C) (2012). A “felony drug
offense” is defined as “an offense that is punishable by
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imprisonment for more than one year . . . that prohibits or
restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant substances.” 21
U.S.C. § 802(44) (2012). Here, Gould’s prior conviction was for
possession of cocaine and resulted in a sentence of two years of
imprisonment. Therefore, Gould’s prior conviction qualified as
a felony drug offense and counsel was not ineffective for
failing to challenge the use of that prior conviction to enhance
the applicable statutory penalties.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment in part and
dismiss in part. This court requires that counsel inform Gould,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Gould 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 Gould. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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