United States v. Lisa Bifield , 544 F. App'x 170 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LISA ELLEN BIFIELD, a/k/a Lisa Ellen Meyers, a/k/a Lisa
Ellen Stockton,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:12-cr-00430-CMC-10)
Submitted: October 18, 2013 Decided: October 23, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
David Bruce Betts, Columbia, South Carolina, for Appellant.
Julius Ness Richardson, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lisa Bifield appeals the district court’s judgment
sentencing her to eighty-four months’ imprisonment. Bifield
pled guilty, pursuant to a written plea agreement, as amended,
to possession of a firearm in furtherance of drug trafficking
and crimes of violence, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006). The Government has moved to dismiss Bifield’s appeal
pursuant to the waiver of appellate rights in her plea
agreement. Bifield contends that she did not knowingly and
intelligently waive her right to appeal and that her trial
counsel was ineffective for advising her to plead guilty. We
grant in part the motion to dismiss and dismiss the appeal of
the sentence, and we deny the motion in part and affirm the
conviction.
To the extent Bifield asserts that she did not
knowingly and voluntarily enter her guilty plea, we conclude
that the record belies her claim. See United States v. DeFusco,
949 F.2d 114, 116, 119-20 (4th Cir. 1991). Bifield also
contends that she did not knowingly waive her appellate rights.
Pursuant to a plea agreement, a defendant may waive her
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
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States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). “An
appellate waiver is valid if the defendant knowingly and
intelligently agreed to [waive the right to appeal].” Manigan,
592 F.3d 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). The question
whether a defendant validly waived her right to appeal is a
question of law that this court reviews de novo. Manigan, 592
F.3d at 626.
Bifield contends that her waiver was not knowing and
intelligent. Upon review of the record, we conclude that the
district court adequately explained the implications of the
waiver during the Rule 11 colloquy with regard to Bifield’s
right to appeal her sentence. Bifield stated that she
understood the waiver as explained and had no questions
regarding its operation. See Blackledge v. Allison, 431 U.S.
63, 74 (1977) (“Solemn declarations in open court carry a strong
presumption of verity.”). Therefore, we grant the Government’s
motion in part and dismiss Bifield’s appeal to the extent that
she challenges her sentence.
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Because the district court did not explicitly discuss
the appellate waiver with regard to Bifield’s conviction and
because Bifield’s claims of ineffective assistance of trial
counsel are, in any event, not barred by the waiver, we deny in
part the Government’s motion to dismiss. See Manigan, 592 F.3d
at 627; 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). Nevertheless, 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).
We decline to review Bifield’s ineffective assistance claims on
direct appeal because ineffective assistance does not
conclusively appear on this record. Bifield must bring her
claim — if at all — in a 28 U.S.C.A. § 2255 (West Supp. 2013)
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 grant in part the Government’s motion
and dismiss the appeal of the sentence, and we deny the motion
in part and affirm the conviction. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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