UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4964
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ENRIQUE GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cr-00054-RLV-DSC-1)
Submitted: September 25, 2014 Decided: September 29, 2014
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Murray Kamionski, LAW OFFICE OF MURRAY KAMIONSKI, Manhattan
Beach, California, for Appellant. Anne M. Tompkins, United
States Attorney, Melissa L. Rikard, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Enrique Garcia appeals his 188–month sentence
following his guilty plea pursuant to a plea agreement to
conspiracy to distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846
(2012). The Government argues that Garcia’s appeal of his
sentence is foreclosed by the waiver of appeal rights in his
plea agreement. We dismiss in part and affirm in part.
A criminal defendant may waive the right to appeal if
that waiver is knowing and intelligent. United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Generally, if
the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). Whether a defendant validly waived his right
to appeal is a question of law this court reviews de novo.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Where the Government seeks to enforce an appeal waiver and there
is no claim that it breached its obligations under the plea
agreement, we will enforce the waiver if the record establishes
that (1) the defendant knowingly and intelligently agreed to
waive the right to appeal; and (2) the issue being appealed is
within the scope of the waiver. Id. at 168 & n. 5.
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Upon review of the record and the parties’ briefs, we
conclude that Garcia knowingly and voluntarily waived the right
to appeal his sentence. Accordingly, we dismiss the portion of
Garcia’s appeal challenging his sentence.
Garcia also challenges his sentence on the basis that
trial counsel rendered ineffective assistance at the sentencing
hearing. 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. § 2255 (2012) motion. Id. An exception exists,
however, where the record conclusively establishes ineffective
assistance. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). After review of the record, we find no conclusive
evidence that trial counsel rendered ineffective assistance, and
we therefore decline to consider this claim on direct appeal.
Accordingly, we dismiss the appeal in part and affirm
the district court’s judgment in part. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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