UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4864
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FEROSE KERRY KHAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:11-cr-00143-LMB-1)
Submitted: September 25, 2012 Decided: November 8, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Ferose Kerry Khan, Appellant Pro Se. Dennis Michael
Fitzpatrick, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ferose Kerry Khan appeals his conviction of conspiracy
to distribute cocaine, in violation of 21 U.S.C. § 846 (2006),
pursuant to a written plea agreement, and his sentence of sixty
months’ imprisonment. He argues that his plea was unknowing and
involuntary, that the indictment was defective, that the factual
basis for his plea was insufficient, that the district court
erred in calculating his Guidelines range, and that counsel was
ineffective for various reasons. The Government seeks
enforcement of the appellate waiver in Khan’s plea agreement.
We dismiss in part and affirm in part.
Khan’s challenge to the voluntariness of his guilty
plea and his claims of ineffective assistance of counsel are not
barred by the waiver provision. We therefore deny the
Government’s motion to dismiss in part. Upon review of the plea
agreement and the transcript of the Fed. R. Crim. P. 11 hearing,
however, we conclude that Khan knowingly and voluntarily entered
his guilty plea. Accordingly, we affirm the conviction on this
ground. With regard to Khan’s ineffective assistance of counsel
claims, we decline to review those claims on direct appeal
because counsel’s ineffectiveness does not conclusively appear
from the record. See United States v. Baldovinos, 434 F.3d 233,
239 (4th Cir. 2006) (providing standard).
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Turning to the validity of the appellate waiver
provision, our review of the record leads us to conclude that
Khan voluntarily waived his right to appeal. The conviction
issues Khan raises on appeal that are unrelated to the
voluntariness of his guilty plea and all of the issues he raises
that challenge his sentence fall squarely within the scope of
his waiver of appellate rights. We therefore grant the
Government’s motion to dismiss in part and dismiss this portion
of the appeal.
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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