UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT MAILLET,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:14-cr-00004-MR-DLH-1)
Submitted: August 19, 2016 Decided: September 2, 2016
Before SHEDD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Robert Maillet pled guilty, pursuant to a plea agreement, to
receiving child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2) (2012), and possessing child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B) (2012). The district court
imposed a downward variant sentence of 148 months’ imprisonment
and a lifetime term of supervised release. Counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal. In his pro se
supplemental briefs, Maillet questioned the procedural and
substantive reasonableness of his terms of imprisonment and
supervised release and asserted that counsel rendered ineffective
assistance at sentencing. We ordered supplemental briefing,
directing the parties to address whether the district court
violated the Double Jeopardy Clause by convicting and sentencing
Maillet for both receiving and possessing child pornography. The
Government now moves to dismiss the appeal pursuant to the appeal
waiver provision in Maillet’s plea agreement. Maillet opposes
dismissal. We grant the Government’s 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
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validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to appeal.”
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, Maillet waived his right to appeal his
convictions and “whatever sentence is imposed,” reserving only his
right to appeal based on ineffective assistance of counsel and
prosecutorial misconduct. The language of this appeal waiver is
clear and unambiguous, and our review of the record reveals that
Maillet understood its full significance. Accordingly, we
conclude that Maillet’s appeal waiver is valid and enforceable.
We also conclude that Maillet’s double jeopardy argument and
his challenges to the reasonableness of his sentence fall squarely
within the scope of the waiver. Although Maillet’s ineffective
assistance claims are not waived, they are not cognizable on direct
appeal “[b]ecause there is no conclusive evidence of ineffective
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assistance on the face of this record.” United States v. Faulls,
821 F.3d 502, 508 (4th Cir. 2016). Thus, Maillet’s “claim[s]
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 Maillet’s appeal. This court
requires that counsel inform Maillet, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Maillet 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 Maillet. 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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