UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5073
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOYA VANTION MOORE,
Defendant - Appellant.
No. 11-5190
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN EARL CANNON,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:10-cr-00046-BO-1; 4:10-cr-00046-BO-2)
Submitted: July 13, 2012 Decided: August 3, 2012
Before KING, DIAZ, and FLOYD, Circuit Judges.
No. 11-5073: Dismissed, and No. 11-5190: Dismissed in part,
affirmed in part, by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER ASHTON, P.A., New Bern, North
Carolina; Dennis M. Hart, Washington, D.C., for Appellants.
Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY,
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In Case No. 11-5073, Moya Vantion Moore seeks to
appeal his 235-month sentence. The Government has moved to
dismiss the appeal as barred by Moore’s waiver of the right to
appeal included in the plea agreement. Upon review of the plea
agreement and the transcript of the Fed. R. Crim. P. 11 hearing,
we conclude that Moore knowingly and voluntarily waived his
right to appeal and that the issues Moore seeks to raise on
appeal fall squarely within the compass of his waiver of
appellate rights. Accordingly, we grant the Government’s motion
to dismiss.
In Case No. 11-5190, Marvin Earl Cannon seeks to
appeal his 292-month sentence. The Government has moved to
dismiss the appeal as barred by Cannon’s waiver of the right to
appeal included in the plea agreement. Upon review of the plea
agreement, we conclude that Cannon knowingly and voluntarily
waived his right to appeal. Further, with the exception of his
claim of ineffective assistance of counsel, the claims Cannon
seeks to raise on appeal fall squarely within the compass of his
waiver of appellate rights. Thus, we grant the Government’s
motion to dismiss Cannon’s appeal except as to Cannon’s claim
that he received ineffective assistance of counsel.
Cannon’s appellate waiver excepted appeals based on
ineffective assistance of counsel. He therefore has not waived
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his right to pursue this claim on direct appeal. However,
claims of ineffective assistance of counsel are not cognizable
on direct appeal unless the record conclusively establishes that
counsel provided ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well
settled that a claim of ineffective assistance should be raised
in a 28 U.S.C. § 2255 motion in the district court rather than
on direct appeal, unless the record conclusively shows
ineffective assistance.”) (internal quotation marks omitted).
The record does not conclusively establish that Cannon’s counsel
was ineffective. Thus, we affirm Cannon’s conviction and
sentence to the extent that he makes this challenge.
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.
No. 11-5073: DISMISSED
No. 11-5190: DISMISSED IN PART, AFFIRMED IN PART
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