UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4771
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RHINELANDER HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger, District
Judge. (5:15-cr-00033-1)
Submitted: August 3, 2016 Decided: August 11, 2016
Before WILKINSON and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
John H. Tinney, Jr., HENDRICKSON & LONG, PLLC, Charleston, West
Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rhinelander Hernandez pled guilty, pursuant to a plea
agreement, to distribution of a quantity of heroin, in violation
of 21 U.S.C. § 841(a)(1) (2012), and the district court imposed a
downward variant sentence of 120 months’ imprisonment. Counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for appeal
but questioning whether the district court erred in sentencing
Hernandez as a career offender. In his pro se supplemental brief,
Hernandez also contends that the court erred in sentencing him as
a career offender and further argues that his former counsel
rendered ineffective assistance by failing to object to the
designation of the prior West Virginia conviction for conspiracy
to commit a felony as a predicate offense for purposes of the
career offender enhancement. The Government moves to dismiss the
appeal pursuant to the appeal waiver provision in Hernandez’s plea
agreement. Hernandez opposes dismissal. For the reasons that
follow, we grant the motion and dismiss the appeal.
“We review the validity of an appeal waiver de novo, and will
enforce the waiver if it is valid and the issue appealed is within
the scope of the waiver.” United States v. Copeland, 707 F.3d
522, 528 (4th Cir. 2013) (internal quotation marks omitted). “The
validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to appeal.”
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United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005). To
determine whether a waiver is knowing and intelligent, we examine
“the totality of the circumstances . . . , including the
background, experience, and conduct of the accused.” Id. (internal
quotation marks omitted). “Generally, if a district court
questions a defendant regarding the waiver of appellate rights
during the [plea] colloquy and the record indicates that the
defendant understood the full significance of the waiver, the
waiver is valid.” Copeland, 707 F.3d at 528 (internal quotation
marks omitted).
In his plea agreement, Hernandez waived his right to appeal
his conviction and sentence “on any ground whatsoever,” reserving
only his right to “appeal any sentence that exceeds the maximum
penalty prescribed by statute” and his right to file a “post-
conviction collateral attack or direct appeal based on a claim of
ineffective assistance of counsel.” The language of this appeal
waiver is clear and unambiguous, and the record reveals that
Hernandez understood the full significance of the waiver. The
court also confirmed that Hernandez was competent to plead guilty
and was entering his plea in the absence of threats, force, or
promises outside of those contained in the plea agreement.
Accordingly, we conclude that Hernandez’s appeal waiver is valid
and enforceable.
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We also conclude that Hernandez’s challenges to the career
offender enhancement fall squarely within the scope of the waiver.
Although Hernandez’s ineffective assistance claim is not waived,
it is not cognizable on direct appeal “[b]ecause there is no
conclusive evidence of ineffective assistance on the face of this
record.” United States v. Faulls, 821 F.3d 502, 508 (4th Cir.
2016). Indeed, Hernandez’s “claim should be raised, if at all, in
a 28 U.S.C. § 2255 motion.” Id.
We have thoroughly reviewed the record in accordance with
Anders and have identified no potentially meritorious issues that
fall outside the scope of the appeal waiver. We therefore grant
the Government’s motion and dismiss Hernandez’s appeal. This court
requires that counsel inform Hernandez, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Hernandez 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 Hernandez. 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
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