UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4948
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRENCE DOUGLAS PENNINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00234-BO-1)
Submitted: April 19, 2012 Decided: April 24, 2012
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Douglas Pennington pled guilty, pursuant to a
plea agreement, to possession with intent to distribute
marijuana and possession of a firearm in furtherance of drug
trafficking. In accordance with Anders v. California, 386 U.S.
738 (1967), Pennington’s attorney has filed a brief certifying
that there are no meritorious issues for appeal but questioning
whether Pennington entered into a knowing and voluntary plea
agreement and guilty plea, whether it conclusively appears on
the record that trial counsel was ineffective, and whether the
sentencing court erred in attributing to Pennington marijuana
and proceeds from 2006. Pennington has filed a pro se
supplemental brief. The Government has moved to dismiss
Pennington’s appeal based on his appellate waiver. 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.
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“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
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 Pennington’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
Pennington’s waiver of appellate rights is valid and
enforceable. Accordingly, we grant the Government’s motion to
dismiss Pennington’s appeal of any issues covered by the waiver.
This includes all sentencing issues. We find, however, that
Pennington’s appellate waiver does not prevent our review of his
ineffective assistance of counsel and prosecutorial misconduct
claims. We therefore deny the Government’s motion to dismiss
Pennington’s appeal as to these claims.
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We affirm the judgment as to the ineffective
assistance of counsel claims raised by Pennington and his
counsel 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). To the extent Pennington
attempts to allege prosecutorial misconduct related to
sentencing, his claim is non-specific and not supported by the
record.
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. This court
requires that counsel inform Pennington, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Pennington 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 Pennington. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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