UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK JEROME BOYD, a/k/a LD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00072-MOC-1)
Submitted: March 7, 2013 Decided: May 6, 2013
Before NIEMEYER, WYNN, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Dennis M. Hart, Washington, D.C., for Appellant. Anne M.
Tompkins, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Jerome Boyd appeals his 240-month sentence
following his guilty plea pursuant to a plea agreement to
conspiracy to distribute and possess with intent to distribute
at least five kilograms of cocaine and at least fifty grams of
cocaine base, in violation of 21 U.S.C.A. § 841(b)(1)(A)
(West 2006 & Supp. 2012) and 21 U.S.C. § 846 (2006). The
Government argues that Boyd’s appeal of his sentence is
foreclosed by the waiver of appeal rights in his plea agreement.
We dismiss in part and affirm in part.
A criminal defendant may waive the right to appeal if
that waiver is knowing and intelligent. United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Generally, if
the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). Whether a defendant validly waived his right
to appeal is a question of law this court reviews de novo.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Where the Government seeks to enforce an appeal waiver and there
is no claim that it breached its obligations under the plea
agreement, we will enforce the waiver if the record establishes
that (1) the defendant knowingly and intelligently agreed to
2
waive the right to appeal; and (2) the issue being appealed is
within the scope of the waiver. Id. at 168 & n.5.
Upon review of the record and the parties’ briefs, we
conclude that Boyd knowingly and voluntarily waived the right to
appeal his 240-month sentence. Accordingly, we dismiss the
portion of Boyd’s appeal challenging his sentence under United
States v. Simmons, 649 F.3d 237, 241-47 (4th Cir. 2011)
(en banc).
Boyd also challenges his sentence on the basis that
trial counsel rendered ineffective assistance at the sentencing
hearing. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claims in
a 28 U.S.C.A. § 2255 (West Supp. 2012) motion. Id. An
exception exists, however, where the record conclusively
establishes ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). After review of
the record, we find no conclusive evidence that trial counsel
rendered ineffective assistance, and we therefore decline to
consider this claim on direct appeal.
Accordingly, we dismiss the appeal in part and affirm
the district court’s judgment in part. We deny the Government’s
motion to strike a portion of the joint appendix. We dispense
3
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.
DISMISSED IN PART;
AFFIRMED IN PART
4