UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4923
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTWAUN MAURICE WINBUSH, a/k/a Nick, a/k/a Antwan Winbush,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:10-cr-00200-1)
Submitted: May 8, 2012 Decided: May 16, 2012
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. John J. Frail, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antwaun Maurice Winbush appeals from his conviction
and 151-month sentence following his guilty plea, pursuant to a
plea agreement, to one count of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2006). Winbush’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether Winbush’s
sentence is substantively reasonable. Winbush was advised of
his right to file a pro se supplemental brief but did not do so.
The Government has moved to dismiss, asserting the appeal is
precluded by the waiver of appellate rights in Winbush’s plea
agreement. We grant the motion in part, affirm in part, and
dismiss in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. General, 278
F.3d 389, 400-01 (4th Cir. 2002). Whether a defendant validly
waived his appeal rights is a question of law that this court
reviews de novo. Manigan, 592 F.3d at 626.
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Our review of the record leads us to conclude that
Winbush knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant in part the Government’s motion to
dismiss, and dismiss the appeal of Winbush’s sentence. *
Winbush did not waive his right to appeal his
conviction. As required by Anders, we have reviewed the entire
record and have found no issues that are meritorious and outside
the scope of the waiver. We therefore affirm Winbush’s
conviction. We deny as moot the Government’s motion to suspend
time for filing Appellee’s brief.
This court requires that counsel inform Winbush, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Winbush 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
*
According to the plea agreement, Winbush retained the
right to appeal the district court’s determination of his
Guidelines range if an objection properly preserved the issue at
the sentencing hearing. However, no such objection was made.
Winbush’s waiver also preserved the right to raise sentencing
claims based on ineffective assistance of counsel not known to
Winbush at the time of his plea. He does not raise such a
claim. Further, unless an attorney’s ineffectiveness
conclusively appears on the face of the record, which is not the
case here, ineffective counsel claims should be raised in a
motion under 28 U.S.C.A. § 2255 (West Supp. 2011), rather than
on direct appeal. See United States v. Benton, 523 F.3d 424,
435 (4th Cir. 2008).
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state that a copy thereof was served on Winbush. 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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