UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDOLPH EDISON, a/k/a Uncle Rudy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cr-00183-WDQ-7)
Submitted: April 23, 2012 Decided: April 26, 2012
Before KING, GREGORY, and SHEDD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Arthur S. Cheslock, Baltimore, Maryland, for Appellant. James
Thomas Wallner, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randolph Edison pled guilty to one count of possessing
a stolen firearm, in violation of 18 U.S.C. § 922(j) (2006). In
his plea agreement, Edison waived the right to appeal his
conviction and sentence, reserving only the right to appeal a
sentence greater than 96 months. Pursuant to his Fed. R. Crim.
P. 11(c)(1)(C) agreement with the Government, Edison was
sentenced to a term of 96 months’ imprisonment. Edison
appealed.
Edison’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no non-frivolous issues for appeal, but questioning whether
there was an adequate factual basis for Edison’s plea, whether
Edison’s counsel inappropriately coerced his plea, and whether
the district court abused its discretion in denying Edison’s
motion to withdraw his plea. In his pro se supplemental brief,
Edison questions the legality of his arrest. The Government has
moved to dismiss Edison’s appeal to the extent that the issues
he raises fall within the scope of his plea agreement’s waiver
of appellate rights. For the following reasons, we grant the
Government’s motion for partial dismissal, 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
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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). The validity of an appellate
waiver 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
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, the district court substantially complied with
Rule 11 when accepting Edison’s plea, ensuring that Edison
understood the rights he was relinquishing by pleading guilty
and the sentence he faced, that Edison committed the offense to
which he was pleading, and that Edison was aware of the limits
his plea would place on his appellate rights. Given no
indication to the contrary, we find that Edison’s appellate
waiver is valid and enforceable. Accordingly, we grant the
Government’s motion for partial dismissal, dismissing Edison’s
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appeal to the entent it raises issues within the scope of the
waiver, including Edison’s pro se challenge to the legality of
his arrest.
However, even a valid waiver of appellate rights will
not foreclose a colorable constitutional challenge to the
voluntariness of a guilty plea. See, e.g., United States v.
Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). Further, an
appeal waiver does not preclude an appeal from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). Because Edison’s motion to withdraw his plea
was premised on, among other things, claims of ineffective
assistance of counsel, we find that his appellate waiver does
not bar his appeal of its denial.
We review for an abuse of discretion a district
court’s denial of a motion to withdraw a guilty plea. United
States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). In order
to withdraw a guilty plea before sentencing, a defendant must
show that a “fair and just reason” supports his request to
withdraw. Fed. R. Crim. P. 11(d)(2)(B); United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). We have defined a “fair and
just reason” as one that essentially challenges the fairness of
the Rule 11 proceeding. United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). Where, as here, the district
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court substantially complies with the requirements of Rule 11 in
accepting a defendant’s guilty plea, the defendant must overcome
a strong presumption that his plea is final and binding. See
id. We have reviewed the record in this case and, after
carefully considering the factors described in Moore, conclude
that the district court did not abuse its discretion in denying
Edison’s motion to withdraw his plea. Thus, we affirm as to
this claim.
Further, we decline to consider at this juncture
Edison’s allegations that he was denied the effective assistance
of counsel. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record, ineffective assistance claims
are not cognizable on direct appeal. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims should
be raised in a motion brought pursuant to 28 U.S.C.A. § 2255
(West Supp. 2011), in order to promote sufficient development of
the record. United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010). Here, the record fails to conclusively
establish counsel’s deficient performance or resulting
prejudice.
In accordance with Anders, we have reviewed the
record, mindful of the scope of the appellate waiver, and have
found no meritorious issues for appeal. We therefore dismiss
the appeal in part and affirm in part. This court requires that
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counsel inform Edison, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Edison requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Edison. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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