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 2005-11

United States v. Martin , 154 F. App'x 335 ( 2005 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTT ANTHONY MARTIN, a/k/a Patsy Martin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-00-82)
Submitted:   October 26, 2005          Decided:     November 15, 2005
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Robert A. Ratliff, Mobile, Alabama, for Appellant.         Paul J.
McNulty, United States Attorney, Michael J. Elston, Laura M.
Everhart, Assistant United States Attorneys, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Scott    Anthony    Martin   pled   guilty   to   conspiracy    to
distribute and to possess with intent to distribute more than five
kilograms of cocaine, in violation of
    21 U.S.C. § 846
     (2000).            The
district court sentenced him to a 292-month term of imprisonment.
Martin appeals his conviction and sentence, asserting that his
guilty plea is involuntary because counsel provided ineffective
assistance and that, in light of Blakely v. Washington,
    542 U.S. 296
     (2004), and United States v. Booker,
    125 S. Ct. 738
     (2005), his
sentence violates the Sixth Amendment. The Government asserts that
Martin validly waived the right to appeal his sentence in the plea
agreement.    We agree with the Government and dismiss that portion
of the appeal.     We affirm Martin’s conviction.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent.     United States v. Blick,
    408 F.3d 162
    ,
169 (4th Cir. 2005).         Generally, if the district court fully
questions a defendant regarding the waiver of his right to appeal
during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid
and enforceable.    United States v. Wessells,
    936 F.2d 165
    , 167-68
(4th Cir. 1991); United States v. Wiggins,
    905 F.2d 51
    , 53-54 (4th
Cir. 1990).    A waiver of appeal does not prohibit the appeal of a
sentence imposed in excess of the statutory maximum, a sentence
based on a constitutionally impermissible factor such as race,
United States v. Marin,
    961 F.2d 493
    , 496 (4th Cir. 1992), or
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proceedings conducted in violation of the Sixth Amendment right to
counsel following the entry of the guilty plea.            United States v.
Attar,
    38 F.3d 727
    , 732-33 (4th Cir. 1994).
Our review of the record leads us to conclude that Martin
knowingly and voluntarily waived the right to appeal his sentence.
See Blick,
    408 F.3d at 169-73
     (holding that plea agreement waiver
of right to appeal that district court accepted prior to Booker was
not invalidated by change in law effected by that decision).
Moreover, the sentencing issue raised on appeal falls within the
scope of the waiver.       See
    id. at 169-70
    .   We therefore dismiss this
portion of the appeal.
Although the waiver provision in the plea agreement
precludes our review of Martin’s sentence, the waiver does not bar
review of the challenge to Martin’s conviction.             Martin contends
that   his     guilty   plea   is    invalid   because    counsel   provided
ineffective assistance by failing to inform him that drug amounts
had    to    be   proved    beyond    a   reasonable     doubt.     However,
“[i]neffective assistance claims are not cognizable on direct
appeal unless counsel’s ineffectiveness conclusively appears on the
record.”      United States v. James,
    337 F.3d 387
    , 391 (4th Cir.
2003), cert. denied,
    540 U.S. 1134
     (2004).         We find that counsel’s
ineffectiveness does not conclusively appear on the face of this
record.      See United States v. McNamara,
    74 F.3d 514
    , 515-17 (4th
Cir. 1996) (holding that counsel cannot be considered ineffective
- 3 -
for failing to anticipate changes in law). We therefore decline to
address this issue in this appeal.
Accordingly, we affirm Martin’s conviction and dismiss
the appeal of his sentence. 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.
AFFIRMED IN PART; DISMISSED IN PART
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