UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4706
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE ANTONIO TILLMAN, a/k/a Main, a/k/a Maine,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:10-cr-00466-MBS-15)
Submitted: April 25, 2012 Decided: May 22, 2012
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Robert L. Hallman, Jr., Columbia, South Carolina, for Appellant.
John David Rowell, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Antonio Tillman pled guilty, pursuant to a
plea agreement, to conspiracy to possess with intent to
distribute five kilograms or more of cocaine, fifty grams or
more of cocaine base, and a quantity of marijuana, in violation
of 21 U.S.C. § 846 (2006). On appeal, Tillman asserts that the
district court erred in denying him a two-level acceptance of
responsibility adjustment, that trial counsel was ineffective in
failing to object to the use of drug quantities obtained during
the course of his cooperation with the Government, and that the
district court erred in imposing a $100,000 forfeiture judgment.
Relying on the waiver of appellate rights in Tillman’s plea
agreement, the Government twice has moved to dismiss this
appeal. We dismiss in part and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude an appeal of “a
specific issue if . . . the waiver is valid and . . . the issue
being appealed is within the scope of the waiver.” United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Manigan, 592 F.3d at 626.
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“An appellate waiver is valid if the defendant
knowingly and intelligently agreed to [waive the right to
appeal].” Id. at 627. To determine whether a waiver is knowing
and intelligent, we examine “the totality of the circumstances.”
Id. (internal quotation marks omitted). “An important factor in
such an evaluation is whether the district court sufficiently
explained the waiver to the defendant during the Federal Rule of
Criminal Procedure 11 plea colloquy.” Id.; see United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Tillman does not challenge the validity of the waiver,
but he alleges that the Government breached the terms of the
plea agreement and that the waiver may not be enforced. We
disagree.
We construe plea agreements in accordance with
principles of contract law “to ensure that each party receives
the benefit of the bargain.” United States v. Jordan, 509 F.3d
191, 195 (4th Cir. 2007). Accordingly, “we must try to discern
the intent of the parties as expressed in the plain language of
the agreement when viewed as a whole.” United States v. Perry,
640 F.3d 805, 811 (8th Cir. 2011) (internal quotation marks
omitted). Because Tillman failed to argue in the district court
that the Government had breached the plea agreement, we review
the claim for plain error. See Puckett v. United States, 556
U.S. 129, 133-34 (2009). Thus, Tillman cannot prevail unless he
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establishes that the district court committed an error, the
error was plain, and the error affected his substantial rights.
United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009). Even if such error is found, it is within this court’s
discretion to notice the error, and we do so “only if the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted).
Here, the Government agreed that it would not use
against Tillman any self-incriminating information he disclosed
during the course of his cooperation. However, the plea
agreement released the Government from its obligations in the
event of a breach. Additionally, a parallel provision in the
agreement specifically provided that the Government’s use of
self-incriminating information will not be restricted “in the
event the Defendant breaches any of the terms of the Plea
Agreement.” (J.A. 102) * (emphasis added). Accordingly, the
Government did not breach the plea agreement when, at
sentencing, it relied on Tillman’s proffer because the
Government was permitted to do so after Tillman refused to
testify at his co-defendant’s trial, in violation of the plea
agreement. Because the waiver is valid and precludes Tillman’s
*
“J.A.” refers to the joint appendix filed by the parties.
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challenge to the absence of an acceptance of responsibility
adjustment and the imposition of the forfeiture judgment, we
grant in part the Government’s motions to dismiss and dismiss
this portion of the appeal.
Although Tillman may not challenge the reasonableness
of his sentence, the appellate waiver does not bar his claim
that trial counsel was ineffective. See Johnson, 410 F.3d at
151 (stating ineffective assistance claims following entry of
guilty plea cannot be waived); see also Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984) (providing standard).
Ineffective assistance of counsel claims are not generally
cognizable on appeal unless ineffective assistance “conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). Because ineffective assistance does
not conclusively appear on this record, we decline to review his
claim in this appeal. Tillman must bring his claim — if at all
— in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion in order to
allow for adequate development of the record. See United States
v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Accordingly, we deny in part the Government’s motions to dismiss
and affirm the remainder of the judgment.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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