UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4517
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS MIGUEL REYES TORRES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:10-cr-00301-BEL-2)
Submitted: December 22, 2011 Decided: January 31, 2012
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Bart Garry, LAW OFFICE OF BART GARRY, Baltimore, Maryland, for
Appellant. Joshua L. Kaul, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Miguel Reyes Torres appeals his convictions for
conspiracy to distribute morphine and methadone, which resulted
in death, and distribution of morphine and methadone, which
resulted in death, and his resulting 115-month sentence. On
appeal, counsel for Torres has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), finding no
meritorious issues for appeal, but questioning whether Torres’s
sentence exceeded the maximum under the applicable Guidelines
range and whether Torres received ineffective assistance of
counsel. The Government filed a motion to dismiss in part based
on Torres’s appellate waiver in the plea agreement. Although
informed of his right to do so, Torres has not filed a pro se
supplemental brief. For the reasons discussed below, we grant
the Government’s motion, dismissing all claims barred by the
plea agreement, and affirm Torres’s convictions and sentence.
In his plea agreement, Torres agreed to waive all
rights to challenge his convictions and sentence, excepting an
appeal from a sentence above the advisory Guidelines range. A
defendant may, in a valid plea agreement, waive the right to
appeal under 18 U.S.C. § 3742 (2006). United States v. Wiggins,
905 F.2d 51, 53 (4th Cir. 1990). An appellate waiver must be
“the result of a knowing and intelligent decision to forgo the
right to appeal.” United States v. Broughton-Jones, 71 F.3d
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1143, 1146 (4th Cir. 1995) (internal quotation marks and
citation omitted). We review de novo whether a defendant has
effectively waived his right to appeal. United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992).
To determine whether a waiver is knowing and
intelligent, we examine “the totality of the circumstances.”
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
Generally, if a court fully questions a defendant regarding the
waiver of his right to appeal during the Rule 11 colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). We find that Torres
knowingly and intelligently waived his right to appeal. Torres
stated that he was fully satisfied with his attorney and that he
understood the plea agreement and the rights he was waiving.
The district court specifically reviewed the appellate waiver
contained in the plea agreement and questioned Torres regarding
the waiver. In addition, Torres admitted reviewing the plea
agreement itself. Torres stated that he understood the waiver,
and he does not challenge the voluntariness of the waiver on
appeal. Accordingly, we grant the Government’s motion to
dismiss all appellate claims covered by the waiver.
However, a valid waiver of appeal does not completely
bar all appeals. For instance, a Defendant may always appeal a
sentence imposed in excess of the statutory maximum, see Marin,
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961 F.2d at 496; a sentence based on a constitutionally
impermissible factor such as race, see id.; or proceedings
conducted in violation of the Sixth Amendment right to counsel
after entry of the guilty plea, see United States v. Attar, 38
F.3d 727, 732-33 (4th Cir. 1994). Moreover, the waiver itself
specifically exempted an appeal of a sentence above the
Guidelines range. We therefore examine counsel’s issues and the
record pursuant to Anders to determine whether there are any
nonwaived, meritorious issues for appeal.
Counsel first raises the issue of whether Torres was
sentenced above the advisory Guidelines range. This claim is
frivolous and flatly belied by the record.
Counsel next questions whether Torres received
ineffective assistance. Regarding his sentencing, such an
ineffective assistance claim is unwaivable, as discussed above.
Accordingly, we address on the merits Torres’s claim of
ineffective assistance at sentencing.
Claims of ineffective assistance of counsel are not
cognizable on direct appeal, unless the record conclusively
establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Rather, to allow
for adequate development of the record, claims of ineffective
assistance generally should be brought in a 28 U.S.C.A. § 2255
(West 2006 & Supp. 2011) motion. United States v. Gastiaburo,
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16 F.3d 582, 590 (4th Cir. 1994). Here, we find that the record
does not conclusively support a claim of ineffective assistance.
In accordance with Anders, we have thoroughly examined
the entire record for any unwaived, potentially meritorious
issues and have found none. As such, we grant the Government’s
motion, dismiss all claims within the scope of the plea
agreement waiver, and affirm Torres’s convictions and sentence.
This court requires that counsel inform Torres in writing of his
right to petition the Supreme Court of the United States for
further review. If Torres 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 Torres. 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
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