United States v. Kevin Eades , 583 F. App'x 257 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4159
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN MITCHELL EADES, a/k/a EZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:13-cr-00504-GRA-1)
Submitted: September 15, 2014 Decided: September 26, 2014
Before KING, AGEE, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Derek J. Enderlin, ROSS & ENDERLIN, P.A., Greenville, South
Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Eades appeals the district court’s judgment
sentencing him to 120 months’ imprisonment following his guilty
plea to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012). The
Government has moved to dismiss Eades’s appeal pursuant to the
waiver of appellate rights to which he agreed at his sentencing.
Eades contends that his waiver is voidable, he did not knowingly
and intelligently waive his right to appeal, his guilty plea is
void, and his trial counsel was ineffective for advising him to
agree to the appeal waiver. We grant the motion in part, and
dismiss the appeal except to the extent Eades raises ineffective
assistance claims outside the scope of the waiver. As to the
claims outside the scope of the waiver, we affirm.
We reject Eades’s contention that his waiver is
voidable for inadequate or improper consideration. Eades
received valuable consideration when the Government, in good
faith, forbore its pursuit of the Armed Career Criminal
sentencing enhancement under 18 U.S.C. § 922(e), regardless of
whether Eades might ultimately have prevailed on the issue.
Moreover, the Government’s forbearance does not constitute
illegal consideration because the Government merely agreed not
to pursue the enhancement. Cf. United States v. Williams, 488
F.3d 1004, 1011 & n.9 (D.C. Cir. 2007) (holding that the
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Government likely could not agree to a plea bargain which would
directly circumvent a mandatory minimum). Thus, we turn to the
waiver itself.
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 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].” United States v. Manigan, 592
F.3d 621, 627 (4th Cir. 2010). To determine whether a waiver is
knowing and intelligent, we examine “the totality of the
circumstances.” Id. (internal quotation marks omitted). We
review de novo whether a defendant validly waived his right to
appeal. Id.
Upon review of the record, we conclude that the
district court adequately explained the implications of the
waiver at Eades’s sentencing. Eades twice confirmed that he
understood the waiver as explained. See Blackledge v. Allison,
431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry
a strong presumption of verity.”). The fact that this
explanation took place at the sentencing, instead of the Fed. R.
Crim. P. 11 colloquy, is irrelevant. Therefore, we grant the
Government’s motion in part and dismiss Eades’s appeal to the
extent that he challenges his sentence. We also dismiss Eades’s
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appeal to the extent that he challenges the validity of his
plea, as those claims are barred by the waiver.
By contrast, Eades’s claims of ineffective assistance
of trial counsel are not barred by the waiver, so we deny the
Government’s motion to dismiss as to those claims. See Manigan,
592 F.3d at 627; United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005) (stating ineffective assistance claims following
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 Eades’s ineffective assistance claims on direct appeal
because ineffective assistance does not conclusively appear on
this record. Eades must bring his claim — if at all — in a 28
U.S.C. § 2255 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 dismiss the appeal as to those claims
within the scope of the appeal waiver, and affirm the remainder
of the district court’s judgment. 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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