UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH THOMAS SMITH, a/k/a Joseph Smith,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cr-00199-HEH-1)
Submitted: October 31, 2011 Decided: November 17, 2011
Before KING, GREGORY, and DAVIS, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Theodore David Bruns, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,
Richmond, Virginia, for Appellant. Roderick Charles Young,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Joseph Thomas
Smith pled guilty to carjacking resulting in death. The
district court sentenced Smith to life imprisonment. On appeal,
Smith’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
viable grounds for appeal, but questioning whether Smith’s
guilty plea was knowing and voluntary. The Government has moved
to dismiss the appeal based on Smith’s waiver of his right to
appeal. In his pro se supplemental brief, Smith contends that
the government lacked jurisdiction to prosecute him for
carjacking, and that counsel was ineffective for failing to
provide him with discovery materials and failing to disclose a
conflict of interest which resulted from the fact that Smith’s
attorney had previously prosecuted him on a vehicle theft
charge. We dismiss in part and affirm in part.
A 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 the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
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(4th Cir. 1991). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
Our review of the record leads us to conclude that
Smith knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
in part and dismiss the appeal as to any sentencing issues. On
the other hand, although Smith’s appeal waiver insulates his
sentence from appellate review, the waiver does not preclude our
consideration of the remaining claims raised by Smith and
counsel, and does not prohibit our review of Smith’s guilty plea
pursuant to Anders. Consequently, we deny the motion to dismiss
in part.
Because Smith did not move in the district court to
withdraw his guilty plea, the adequacy of the Rule 11 hearing is
reviewed for plain error. See United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). Our review of the transcript of
the plea hearing leads us to conclude that the district court
fully complied with Rule 11 in accepting Smith’s guilty plea.
The court ensured that Smith understood the charge against him
and the potential sentence he faced; that he entered his plea
knowingly and voluntarily; and that the plea was supported by an
independent factual basis. See United States v. DeFusco, 949
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F.2d 114, 116, 119-20 (4th Cir. 1991). Accordingly, we discern
no plain error in the district court’s acceptance of Smith’s
guilty plea.
Smith’s challenge to the court’s jurisdiction to
prosecute him for carjacking is essentially a challenge to the
adequacy of the factual basis. He contends that the facts did
not support a finding on all the elements of carjacking. We
disagree. The agreed statement of facts shows that Smith and
five other individuals devised a plan to rob Jamal Nasir of
drugs and money. They lured Nasir from his vehicle into a
residence where they assaulted and restrained him with duct
tape. Several of the individuals then returned to Nasir’s
vehicle where Willie Smith was waiting. They then forced Willie
Smith from the vehicle into the residence and took the keys to
the vehicle from Willie Smith, assaulted him, and restrained him
with duct tape. The individuals then forced Nasir and Willie
Smith into the trunk of the vehicle and drove the vehicle to a
remote location. Nasir and Willie Smith died in the trunk of
Nasir’s vehicle due to lack of oxygen. These facts form a
sufficient factual basis for the crime of carjacking resulting
in death.
Smith also contends that his attorney: (1) convinced
him to plead guilty by informing him that he might otherwise be
sentenced to death; (2) failed to provide him with discovery
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materials; and (3) failed to disclose that he operated under a
conflict of interest because counsel had been the prosecutor on
Smith’s prior charge of vehicle theft. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal. Such claims are more appropriately raised in a motion
filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2010), unless
counsel’s ineffectiveness conclusively appears on the record.
See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.
2006); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999). After review of the record, we find no conclusive
evidence that counsel rendered ineffective assistance, and we
accordingly decline to consider these claims on direct appeal.
We of course intimate no view as to the validity or lack of
validity in respect to any claim of ineffective assistance.
In accordance with Anders, we have reviewed the
remainder of the record in this case and have found no
meritorious issues not foreclosed by Smith’s appellate waiver.
We therefore affirm Smith’s conviction and dismiss the appeal of
his sentence. We deny Smith’s motion to appoint new counsel.
This court requires that counsel inform Smith, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Smith 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
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representation. Counsel’s motion must state that a copy thereof
was served on Smith. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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