United States v. Glover , 412 F. App'x 602 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4668
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL GLOVER, a/k/a Michael G,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:07-cr-00023-BO-5)
Submitted: January 27, 2011 Decided: February 25, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Glover pled guilty, pursuant to a written plea
agreement, to one count of conspiracy to distribute and possess
with the intent to distribute more than five kilograms of
cocaine and 100 kilograms or more of marijuana, in violation of
21 U.S.C. § 846 (2006). The district court calculated Glover’s
Guidelines range under the U.S. Sentencing Guidelines Manual
(2007) at 292 to 365 months’ imprisonment and sentenced Glover
to 292 months’ imprisonment. On appeal, Glover’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious issues for appeal,
but questioning whether trial counsel rendered ineffective
assistance by coercing Glover to plead guilty. Glover has filed
a pro se supplemental brief in which he asserts that his
sentence is procedurally unreasonable and trial counsel rendered
ineffective assistance. The Government has moved to dismiss the
appeal of Glover’s sentence based on his waiver of appellate
rights. We dismiss in part and affirm in part.
A 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 the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
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enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
Our review of the record leads us to conclude that
Glover knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
and dismiss the appeal of Glover’s sentence. Although Glover’s
appeal waiver insulates his sentence from appellate review, the
waiver does not preclude our consideration of the remaining
claims Glover’s counsel and Glover raise on appeal or prohibit
our review of Glover’s conviction pursuant to Anders.
Turning, then, to the unwaived claims of ineffective
assistance of counsel, these claims are more appropriately
raised in a motion filed pursuant to 28 U.S.C.A. § 2255(West Supp. 2010), unless counsel’s ineffectiveness conclusively
appears on the record. See United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999). After review of the record,
we find no conclusive evidence that counsel rendered ineffective
assistance, and we accordingly decline to consider these claims
on direct appeal.
Further, in accordance with Anders, we have reviewed
the remainder of the record in this case and have found no
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meritorious issues for review. We therefore affirm Glover’s
conviction and dismiss the appeal of his sentence. This court
requires that counsel inform Glover, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Glover requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Glover.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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