UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4975
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN E. WIDDOWS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:10-cr-00081-BEL-1)
Submitted: March 27, 2012 Decided: March 30, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Mark Walter Crooks, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John E. Widdows pleaded guilty, pursuant to a written
plea agreement, to one count of sexual exploitation of a minor
for the purpose of producing child pornography, in violation of
18 U.S.C.A. § 2251(a) (West Supp. 2011). The district court
sentenced Widdows to 220 months in prison followed by a lifetime
of supervised release. On appeal, Widdows’ counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he states that he could find no meritorious issues for
appeal, but questions whether trial counsel provided ineffective
assistance by failing to seek or obtain a lower sentence.
Widdows was notified of his right to file a pro se supplemental
brief but has not done so. The Government moved to dismiss the
appeal to the extent it is precluded by the appeal waiver in
Widdows’ plea agreement.
We consider a defendant’s waiver of his right to
appeal de novo. United States v. Manigan, 592 F.3d 621, 626
(4th Cir. 2010). Where the United States seeks to enforce an
appeal waiver and there is no claim that the United States
breached its obligations under the plea agreement, we generally
will enforce the waiver if the record establishes that (1) the
defendant knowingly and intelligently agreed to waive the right
to appeal; and (2) the issue being appealed is within the scope
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of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
Our review of the record confirms that Widdows
knowingly and intelligently waived his right to appeal his
sentence. In his plea agreement, Widdows waived the right to
challenge his conviction or sentence on appeal, reserving only
the right to appeal any term of imprisonment to the extent it
exceeded a Guidelines offense level of thirty-seven. The wide
scope of Widdows’ appellate waiver therefore forecloses our
review of most issues relating to his conviction and sentence.
Accordingly, we grant the Government’s motion to dismiss the
appeal to the extent Widdows appeals issues within the compass
of the waiver.
The issue raised by Anders counsel is, however,
unwaivable. See United States v. Attar, 38 F.3d 727, 732-33
(4th Cir. 1994). Thus, Widdows’ ineffective assistance of
counsel claim survives his appeal waiver. Such ineffective
assistance claims are, however, generally not cognizable on
direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Our review of the sentencing hearing reveals that
Widdows’ counsel argued on his behalf for the statutory minimum
sentence. We find no conclusive display of ineffective
assistance warranting our intervention on direct appeal.
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In accordance with Anders, we have thoroughly examined
the entire record for any other potentially meritorious issues
outside the scope of Widdows’ appeal waiver. We have found no
such issues. Therefore we dismiss the appeal in part and affirm
the remainder of the district court’s judgment. This court
requires that counsel inform Widdows, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Widdows 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 Widdows. 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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