UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4685
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KSHAWN MALIK HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00049-HEH-1)
Submitted: February 23, 2012 Decided: March 12, 2012
Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, P.C., Virginia Beach, Virginia, for Appellant.
Jamie L. Mickelson, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kshawn Malik Hill pled guilty, pursuant to a plea
agreement, to one count of carjacking and two counts of
possession of a firearm in furtherance of a crime of violence.
He was sentenced to a term of 520 months in prison. In
accordance with Anders v. California, 386 U.S. 738 (1967),
Hill’s attorney has filed a brief certifying that there are no
meritorious issues for appeal but questioning whether Hill’s
guilty plea was knowing and voluntary and whether counsel was
ineffective in advising Hill to plead guilty. The Government
moved to dismiss Hill’s appeal based on his appellate waiver.
Hill has not filed a pro se supplemental brief. For the
following reasons, we dismiss in part and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). Whether a defendant validly
waived his right to appeal is a question of law that we review
de novo. Id.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169. This determination, often made
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based on the sufficiency of the plea colloquy and whether the
district court questioned the defendant about the appeal waiver,
ultimately turns on an evaluation of the totality of the
circumstances. Id. These circumstances include all of “the
particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the
accused.” Id. (internal quotation marks omitted).
Here, a review of the record indicates that the
district court fully complied with Fed. R. Crim. P. 11 when
accepting Hill’s plea and specifically reviewed the terms of his
plea agreement with him, including his appellate waiver. Given
no indication in the record to the contrary, we find that Hill’s
waiver of appellate rights is valid and enforceable.
Accordingly, we grant the Government’s motion to dismiss Hill’s
appeal of any issues covered by the waiver.
We find, however, that Hill’s appellate waiver does
not prevent our review of Hill’s claim of ineffective assistance
of counsel regarding counsel’s advice to plead guilty. A waiver
of appeal rights will not bar appellate review of such a claim
if it contains a “colorable claim” that the plea agreement “is
tainted by constitutional error,” such as involuntariness or the
lack of the effective assistance of counsel. See, e.g., United
States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994)
(regarding motion to withdraw guilty plea). Because Hill raises
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a claim that his attorney’s ineffectiveness rendered his plea
involuntary, we deny the Government’s motion to dismiss Hill’s
appeal as to this claim.
We affirm the judgment as to the ineffective
assistance of counsel claim because ineffective assistance does
not conclusively appear on the record. See Massaro v. United
States, 538 U.S. 1690, 1693-94 (2003); United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (ineffective
assistance claims are not cognizable on direct appeal unless the
record conclusively establishes ineffective assistance).
In accordance with Anders, we have reviewed the record
in this case, mindful of the scope of the appellate waiver, and
have found no meritorious issues for appeal. We therefore
affirm in part and dismiss in part. This court requires that
counsel inform Hill, in writing, of his right to petition the
Supreme Court of the United States for further review. If Hill
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Hill. We dispense with oral
argument because the facts and legal contentions are adequately
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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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