United States v. Morris Reid , 436 F. App'x 141 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5278
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MORRIS ANTONIO REID,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-cr-00263-D-1)
Submitted: June 13, 2011 Decided: June 21, 2011
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James C. White, Michelle M. Walker, LAW OFFICE OF JAMES C.
WHITE, PC, Chapel Hill, 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Unpublished opinions are not binding precedent in this circuit.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:
Morris Antonio Reid pleaded guilty, pursuant to a plea
agreement, to possession of stolen ammunition, in violation of
18 U.S.C. § 922(j) (2006). He was sentenced to 102 months’
imprisonment. On appeal, Reid argues that the district court
applied improper enhancements to his offense level and that
trial counsel was ineffective at sentencing by failing to
present certain arguments in opposition to the enhancements.
The Government seeks to enforce the appellate waiver
provision of the plea agreement and has moved to dismiss Reid’s
appeal. Reid asserts that his appeal is based upon ineffective
assistance of counsel and is therefore outside the scope of the
appellate waiver.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude appeal of a
specific issue if the waiver is valid and the issue is within
the scope of the waiver. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). Whether a defendant has validly waived his
right to appeal is a question of law that this court reviews de
novo. Manigan, 592 F.3d at 626.
An appellate waiver is valid if the defendant
knowingly and intelligently agreed to waive the right to appeal.
Id. at 627. To determine whether a waiver is knowing and
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intelligent, this court examines the totality of the
circumstances. Id. “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).
Here, the district court specifically questioned Reid
concerning the waiver provision of the plea agreement. Reid
affirmed that he read and understood each term of the plea
agreement. The district court read the appellate wavier
provision in its entirety and asked Reid whether he understood
the appellate rights he was giving up. Reid indicated he
understood. The court also advised Reid that he could receive a
sentence up to the statutory maximum, and that such a sentence
would not entitle him to withdraw his guilty plea. We therefore
conclude that Reid knowingly and intelligently waived his right
to appeal his sentence. Reid has not challenged the validity of
the waiver. Accordingly, Reid’s challenges to his sentence are
within the scope of the waiver and may not be reviewed by this
court.
Reid also asserts that counsel provided ineffective
assistance in failing to present certain arguments at
sentencing. This issue falls outside the appellate waiver
provision, and we deny the motion to dismiss as to this claim.
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However, as a general rule, claims of ineffective assistance of
counsel must be raised in a 28 U.S.C.A. § 2255 (West Supp. 2010)
motion rather than on direct appeal, unless the appellate record
conclusively demonstrates ineffective assistance. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because
the record here does not conclusively establish that counsel was
constitutionally ineffective in presenting sentencing arguments,
the claim is not subject to review on direct appeal.
Accordingly, we grant the Government’s motion to
dismiss in part and deny it in part. We dismiss the appeal of
Reid’s sentence and otherwise affirm the judgment of the
district court. 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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