UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE MCCRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:13-cr-00046-JRS-1)
Submitted: May 22, 2014 Decided: May 28, 2014
Before TRAXLER, Chief Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Thomas K. Johnstone IV,
Special Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrance McCray appeals from his conviction and
twenty-four-month sentence after he pled guilty pursuant to a
plea agreement to one count of conspiracy to commit bank fraud
and mail theft, in violation of 18 U.S.C. §§ 371, 1344, 1708
(2012). McCray asserts that the criminal judgment against him
should be vacated because he argues it was plain error for him
to plead guilty with the misapprehension that his federal
sentence would run concurrent to the state sentence he was then
serving. 1 In response, the Government invokes the appellate
waiver in McCray’s plea agreement, which provides that McCray
waived his right to appeal his conviction and any sentence
within the five-year stautory mandatory maximum applicable to
his conviction. We affirm in part and dismiss in part.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2012). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo and will uphold a waiver
1
Because counsel submitted an advocate’s brief on the
merits, we decline counsel’s invitation to perform a review
under Anders v. California, 386 U.S. 738 (1967), should we find
his primary argument to be meritless. McCoy v. Court of Appeals
of Wis., Dist. 1, 486 U.S. 429, 439 n.13 (1988) (“The Anders
requirement assures that indigent defendants have the benefit of
. . . a diligent and thorough review of the record and an
identification of any arguable issues revealed by that
review.”).
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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 omitted). Generally,
if a district court fully questions a defendant regarding the
waiver of appellate rights during the Fed. R. Crim. P. 11
colloquy and the record indicates that the defendant understood
the 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). The totality of the
circumstances compels the conclusion that McCray knowingly and
intelligently waived his right to appeal and, thus, his appeal
is barred, at least in part, by the appellate waiver.
Despite the foregoing, McCray contends that he
misunderstood that his federal sentence could be run consecutive
to his state sentence, thereby rendering his guilty plea
unknowing and involuntary. Although a defendant’s waiver of
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appellate rights cannot foreclose a colorable constitutional
challenge to the voluntariness of a guilty plea, see, e.g.,
United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir.
1994), Rule 11 does not require that a district court inform a
defendant that a sentence may be imposed consecutive to another
sentence. See General, 278 F.3d at 395. In fact, Rule 11
requires, in relevant part, that the court “inform the defendant
of, and determine that the defendant understands, . . . any
maximum possible penalty, including imprisonment, fine, and term
of supervised release[.]” Fed. R. Crim. P. 11(b)(1)(H). The
magistrate judge—to whose jurisdiction McCray consented—complied
with this requirement. We nonetheless conclude that McCray’s
plea agreement, the magistrate judge’s Rule 11 colloquy, and the
assurances McCray made during that colloquy were sufficient to
render his plea knowing and voluntary.
Accordingly, to the extent McCray raises claims within
the scope of the appellate waiver, we dismiss in part. We
nonetheless affirm in part to the extent McCray raises claims
not barred by the appellate waiver. 2 We dispense with oral
2
Although McCray summarily asserts he received ineffective
assistance of counsel, a claim not barred by the appellate
waiver in his plea agreement, the record does not conclusively
demonstrate that counsel was ineffective. See United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (“A defendant can
raise the claim of ineffective assistance of counsel . . . on
direct appeal if and only if it conclusively appears from the
(Continued)
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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
record that his counsel did not provide effective
assistance[.]”).
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