UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7401
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM HARRY MEYER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-01181-TLW-1)
Submitted: March 27, 2012 Decided: April 2, 2012
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Daniel A. Juengel, FRANK, JUENGEL & RADEFELD, P.C., St. Louis,
Missouri, for Appellant. William E. Day, II, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Harry Meyer pled guilty, pursuant to a written
plea agreement, to transferring obscene material to a minor
under the age of sixteen, in violation of 18 U.S.C. § 1470
(2000). The district court imposed the statutory maximum
sentence of 120 months’ imprisonment. On appeal, Meyer argues
that: (1) his trial counsel was constitutionally ineffective;
(2) the appellate waiver in his plea agreement is unenforceable;
and (3) the district court abused its discretion by imposing an
unreasonable sentence.
The Government seeks to enforce the appellate waiver
provision of the plea agreement and has moved to dismiss Meyer’s
appeal. In response, Meyer asserts that the appellate waiver
does not preclude claims of ineffective assistance of counsel,
the Government waived assertion of the waiver by failing to
object when the district court instructed Meyer that he had a
right to appeal after imposing his sentence, and Meyer did not
knowingly and voluntarily waive his right to appeal.
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 1143, 1146 (4th Cir. 1995) (internal quotation marks and
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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, this court examines “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 and citation omitted). 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). However, this court will “refuse to enforce an
otherwise valid waiver if to do so would result in a miscarriage
of justice.” Id. (internal quotation marks and citation
omitted).
Although the district court mistakenly told Meyer “You
do have the right to appeal” after imposing his sentence, this
statement does not nullify the valid waiver contained in his
plea agreement. The court specifically questioned Meyer
regarding the waiver provision numerous times during the Fed. R.
Crim. P. 11 plea colloquy. Meyer, a fifty-seven-year-old man
with a bachelor’s degree, indicated that he had reviewed the
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appellate waiver with his attorney, understood it, and did not
have any questions. Thereafter, the court permitted Meyer’s
counsel additional time to discuss the waiver provision with his
client, and questioned whether Meyer understood the waiver
provision a second time. Meyer responded that he understood.
We therefore conclude that Meyer knowingly and intelligently
waived his right to appeal his sentence. Accordingly, Meyer’s
challenge to his sentence falls within the scope of the waiver
and may not be reviewed by this court.
Meyer also asserts that his trial counsel provided
ineffective assistance by failing to ascertain his relevant
conduct, failing to explain the effect his relevant conduct
would have on his Guidelines range, and failing to preserve his
right to appeal his sentence. Claims of ineffective assistance
of counsel fall outside the scope of the appellate waiver
provision, and we deny the motion to dismiss as to these claims.
However, as a general rule, claims of ineffective assistance of
counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.
2010) motion rather than on direct appeal, unless the appellate
record conclusively demonstrates ineffective assistance. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because
the record here does not establish that counsel was
constitutionally ineffective, these claims are not subject to
review on direct appeal.
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Accordingly, we grant the Government’s motion to
dismiss in part and deny it in part. We dismiss the appeal of
Meyer’s sentence and otherwise affirm the judgment of the
district court. 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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