UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4685
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEON POWELL, a/k/a Deon Archie Powell,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:11-cr-00177-1)
Submitted: March 19, 2013 Decided: April 4, 2013
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant. Monica D. Coleman, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deon Powell was sentenced to seventy-one months’
imprisonment after pleading guilty, pursuant to a plea
agreement, to possession of heroin, in violation of 18 U.S.C.
§ 841(a)(1) (2006). On appeal, counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that he
found no meritorious issues for appeal but questioning whether
the district court erred in denying Powell’s pretrial motions to
suppress and overruling Powell’s objection to his drug quantity
calculation. Powell filed a pro se supplemental brief
reiterating counsel’s arguments and asserting several other
alleged errors. The Government has moved to dismiss Powell’s
appeal, asserting that he waived the right to appeal his
sentence in the plea agreement. We dismiss in part and affirm
in part.
We review de novo whether a defendant has effectively
waived the right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). 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). To determine whether a waiver is knowing and
intelligent, this court examines the totality of the
circumstances, including the defendant’s experience, conduct,
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educational background, and familiarity with the plea
agreement’s terms. United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). Generally, if a district court fully questions
a defendant regarding the appellate waiver 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
enforcing the waiver would result in a miscarriage of justice.
Id.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Powell
knowingly and intelligently agreed to the waiver of appellate
rights as set forth in the plea agreement. During the Rule 11
colloquy, the court reviewed the terms of the plea agreement,
including the waiver provision, with Powell, and Powell affirmed
that he understood those terms. Powell admits this in his
response to the Government’s motion to dismiss, and did not
contest the waiver in his Anders brief.
We next determine whether the issues Powell seeks to
raise on appeal fall within the scope of the appellate waiver.
Powell raises various allegations, including that the district
court erred in denying his pretrial motions to suppress and
overruling his objection to the drug quantity calculation, and
that counsel forced him to lie about his guilt. However, Powell
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waived the right to appeal his sentence or the manner in which
it was determined on any ground, so long as his sentence was
below or within the Guidelines range corresponding to an offense
level of twenty-six. Because Powell’s challenge regarding the
drug quantity calculation concerns the manner in which his
sentence was determined, and because Powell was sentenced within
the Guidelines range corresponding to an offense level of
twenty-four, Powell’s challenge to the drug quantity calculation
falls squarely within the scope of the appellate waiver.
Accordingly, we grant the Government’s motion to dismiss
Powell’s appeal of his sentence.
Powell’s challenge regarding his pretrial motions, and
the other claims in his pro se brief, concern his guilty plea
and not his sentence, and thus fall outside the scope of the
appellate waiver. To the extent Powell claims his guilty plea
was involuntary, our review of the record compels the contrary
conclusion. By knowingly and voluntarily pleading guilty,
Powell has waived appellate review of the remaining claims.
United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993).
We also conclude that the record does not conclusively establish
that counsel was ineffective; accordingly, Powell’s ineffective
assistance claim is not cognizable on direct appeal. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
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In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Powell’s conviction.
This court requires that counsel inform Powell, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Powell requests that a
petition be filed, but counsel believes such petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on Powell. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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