United States v. William Crawford ( 2000 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                 No. 99-4349
    WILLIAM CRAWFORD, a/k/a Pop,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Western District of North Carolina, at Statesville.
    Richard L. Voorhees, District Judge.
    (CR-98-124)
    Submitted: March 14, 2000
    Decided: April 26, 2000
    Before LUTTIG and TRAXLER, Circuit Judges,
    and BUTZNER, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed in part and dismissed in part by unpublished per curiam
    opinion.
    _________________________________________________________________
    COUNSEL
    Jeffrey S. Lisson, Winston-Salem, North Carolina, for Appellant.
    Robert Jack Higdon, Jr., OFFICE OF THE UNITED STATES
    ATTORNEY, Charlotte, North Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    William Crawford appeals his conviction and sentence for conspir-
    acy to possess with intent to distribute cocaine base in violation of 
    21 U.S.C. § 846
     (1994). Crawford plead guilty, and his plea agreement
    contained a waiver of his right to appeal his conviction or sentence,
    either directly or in a post-conviction collateral proceeding. The plea
    agreement reserved Crawford's right to appeal based upon ineffective
    assistance of counsel or prosecutorial misconduct. The district court
    sentenced Crawford to 135 months imprisonment, followed by three
    years supervised release and a special assessment of $100.
    The Government moves to dismiss the appeal based on the waiver
    provision in the plea agreement. As discussed more fully below, we
    grant the motion to dismiss as to the claim raised in the Anders* brief
    filed by counsel, but deny the motion as to the claims raised in Craw-
    ford's pro se supplemental informal brief. Because the claims raised
    in Crawford's pro se brief are meritless, we affirm as to those claims.
    Crawford's attorney offered one claim in his Anders brief: that the
    district court erred in failing to grant his motion for a downward
    departure under USSG § 3B1.2 (1998) based upon his minor role in
    the drug conspiracy. Crawford waived his right to pursue this claim
    on appeal.
    We review the validity of waivers de novo. See United States v.
    Marin, 
    961 F.2d 493
    , 496 (4th Cir. 1992). We will uphold a waiver
    of rights if the waiver is knowing and intelligent. See United States
    v. Wessells, 
    936 F.2d 165
    , 167 (4th Cir. 1991). Generally, if a district
    court fully questions a defendant regarding his waiver of appellate
    _________________________________________________________________
    *Anders v. California, 
    386 U.S. 738
     (1967).
    2
    right during the Rule 11 colloquy, the waiver is valid and enforceable.
    See id. at 167-68.
    During the Fed. R. Crim. P. 11 colloquy, Crawford was placed
    under oath, the United States summarized the plea agreement (includ-
    ing the waiver of appellate rights), and Crawford stated that he under-
    stood the waiver. In response to the district court's inquiry, Crawford
    stated that he had reviewed the plea agreement with his attorney and
    was satisfied with the services of his attorney. The waiver is therefore
    valid. See Wessells, 
    936 F.2d at 167-68
    . Thus, we dismiss the appeal
    as to this claim.
    Crawford's pro se supplemental brief advances several grounds for
    appeal, none of which has been waived by the terms of his plea agree-
    ment.
    Crawford claims that his trial counsel was ineffective for: failing
    to object to certain provisions of his pre-sentence report; failing to
    advance Crawford's version of his involvement in the conspiracy; and
    failing to argue the unconstitutional vagueness of 
    21 U.S.C.A. § 841
    (West 1999). However, a claim of ineffective assistance of counsel is
    more appropriately raised in a motion filed pursuant to 
    28 U.S.C.A. § 2255
     (West Supp. 1999). See United States v. Williams, 
    977 F.2d 866
    , 871 (4th Cir. 1992). This court will not review claims of ineffec-
    tive assistance of counsel on direct review absent conclusive evidence
    of ineffectiveness from the face of the record. See United States v.
    Hoyle, 
    33 F.3d 415
    , 418-19 (4th Cir. 1994). None of Crawford's inef-
    fective assistance claims are conclusively established on the face of
    the record. Accordingly, we affirm as to these claims.
    Crawford's final claim is that because cocaine base has never been
    properly scheduled as a controlled substance, the district court lacked
    jurisdiction to convict him. Appellate review of proper subject matter
    jurisdiction cannot be waived by the litigants. See United States v.
    Griffin, 
    303 U.S. 226
    , 229 (1938); Farouki v. Emirates Bank Int'l,
    Ltd., 
    14 F.3d 244
    , 247 n.7 (4th Cir. 1994). Although this claim can
    not be waived by Crawford's plea agreement, it has no substantive
    merit. See United States v. Deisch, 
    20 F.3d 139
    , 150-51 (5th Cir.
    1994); United States v. Pinto, 
    905 F.2d 47
    , 49 (4th Cir. 1990). There-
    fore, we affirm as to this claim.
    3
    As this is an Anders appeal, we have thoroughly reviewed the
    record, including the transcripts of the Rule 11 and sentencing hearing
    and the pre-sentence report, and find no reversible error. This court
    requires that counsel inform his client in writing of his right to peti-
    tion the Supreme Court of the United States for further review. If
    Crawford requests that a petition be filed but counsel believes that
    such a petition would be frivolous, then counsel may move this court
    for leave to withdraw from representation. Counsel's motion must
    state that a copy thereof was served on Crawford. 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
    4