UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN A. BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00347-REP-1)
Submitted: September 15, 2011 Decided: October 3, 2011
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Rebecca S. Colaw, Natalie C. Martin, Suffolk, Virginia, for
Appellant. Olivia L. Norman, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John A. Bryant appeals his conviction and 169-month
sentence, following his guilty plea to conspiracy to distribute
and possess with intent to distribute cocaine base, in violation
of 21 U.S.C. § 846 (2006). On appeal, Bryant’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal, but questioning whether trial counsel rendered
ineffective assistance of counsel. Bryant filed a pro se
supplemental brief claiming that he did not knowingly and
intelligently waive his right to appeal, that he received
ineffective assistance of counsel, and that he was entitled to a
lesser sentence pursuant to the Fair Sentencing Act of 2010
(“FSA”). The Government has filed a motion to dismiss the
appeal on the basis of the appellate waiver provision in
Bryant’s plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo, and we will uphold a
waiver 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
2
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).
A review of the plea colloquy before a magistrate
judge confirms that Bryant knowingly and intelligently waived
his right to appeal. In his plea agreement, Bryant explicitly
waived the right to challenge his conviction and a sentence
imposed within the statutory maximum on any grounds whatever.
Bryant confirmed at the Rule 11 hearing that he read and
understood the plea agreement. The magistrate judge conducted
the colloquy required under Rule 11, ensuring that Bryant
understood the charges and potential penalties and that Bryant
was competent to enter the plea. Contrary to Bryant’s
assertion, neither the magistrate judge nor the district court
3
informed him that he had a right to appeal. We therefore
conclude that Bryant knowingly and intelligently waived the
right to challenge on appeal his sentence and the validity of
his guilty plea. Accordingly, we grant the motion to dismiss as
to Bryant’s challenges to his sentence and guilty plea.
However broad, the waiver provision did not waive
Bryant’s right to appeal certain claims, including challenges to
a sentence imposed in excess of the statutory maximum, a
sentence based on a constitutionally impermissible factor, or
counsel’s ineffective assistance. See Johnson, 410 F.3d at 151.
We have reviewed the record pursuant to Anders and conclude that
Bryant was sentenced within the statutory maximum and there is
no evidence that his sentence was based on a constitutionally
impermissible factor. Further, because ineffective assistance
of counsel does not appear conclusively on the record, Bryant’s
claims that trial counsel rendered ineffective assistance in
failing to adequately advise him regarding his guilty plea,
gather discovery, and timely file a notice of appeal are not
cognizable on direct appeal. See United States v. Benton, 523
F.3d 424, 435 (4th Cir. 2008). Accordingly, although we deny
the Government’s motion to dismiss as to Bryant’s claims of
ineffective assistance of counsel, we affirm his conviction.
In sum, the Government’s motion to dismiss is granted
in part and denied in part, Bryant’s appeal of his sentence and
4
guilty plea is dismissed, and his conviction is affirmed. This
court requires that counsel inform Bryant, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Bryant 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 Bryant. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
5