UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY SHERELLE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:10-cr-00155-RGD-FBS-1)
Submitted: May 4, 2012 Decided: May 10, 2012
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant. Cameron Rountree, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Sherelle Johnson pled guilty, pursuant to a
written plea agreement, to possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (2006). The district court sentenced
Johnson to 262 months’ imprisonment. On appeal, Johnson argues
that his trial counsel was constitutionally ineffective for
advising him to enter into a plea agreement without explaining
that he could be subject to an enhanced sentence as a career
offender and failing to file an appeal as he requested. In
addition, Johnson argues that the district court erroneously
sentenced him as a career offender.
The Government seeks to enforce the appellate waiver
provision of the plea agreement and has moved to dismiss
Johnson’s appeal. ∗ In response, Johnson asserts that the
appellate waiver is unenforceable because his counsel provided
ineffective assistance and maintained a conflict of interest in
advising Johnson to enter into a plea agreement with the
Government.
∗
The Government also notes that Johnson’s pro se notice of
appeal is untimely, as it was filed on September 6, 2011, more
than three months after judgment was entered on May 16, 2011.
However, the Government waives the untimeliness of Johnson’s
appeal, seeking dismissal solely based upon Johnson’s appellate
waiver.
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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
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).
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The language of the waiver provision is clear and
unambiguous, setting forth a broad waiver of appellate rights;
Johnson agreed to waive the right to appeal “the conviction and
any sentence within the statutory maximum” on “any ground
whatsoever.” The court questioned Johnson regarding the waiver
provision numerous times during the Fed. R. Crim. P. 11
colloquy. Johnson, thirty-one-years-old with a GED, indicated
that he had reviewed the waiver provision and understood its
terms. In addition, the court advised Johnson that he would not
be able to withdraw his guilty plea if his attorney’s
predictions regarding his Guidelines range proved inaccurate,
emphasized that Johnson’s Guidelines range could not be
determined until the presentence report was prepared, and
cautioned that Johnson’s criminal history would be an important
factor in determining his Guidelines range. We therefore
conclude that Johnson knowingly and intelligently waived his
right to appeal his conviction and sentence. As the district
court imposed a sentence within the statutory maximum, Johnson’s
challenge to his sentence falls within the scope of the waiver
and may not be reviewed by this court.
Johnson also asserts that his trial counsel provided
ineffective assistance by failing to explain that he could be
subject to an enhanced sentence as a career offender based upon
his criminal history and failing to file a direct appeal. This
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court is not precluded from considering claims of ineffective
assistance of counsel by the waiver provision, and we deny the
motion to dismiss as to these claims. However, 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.
Accordingly, we grant the Government’s motion to
dismiss in part and deny it in part. We dismiss the appeal of
Johnson’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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