US v. Andrey Savelyev, No. 10-4622 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4622 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANDREY SAVELYEV, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:09-cr-00118-RGD-DEM-1) Submitted: January 25, 2011 Decided: February 8, 2011 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, P.C., Virginia Beach, Virginia, for Appellant. Stephen Westley Haynie, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Andrey Savelyev appeals from his conviction and twenty-four month sentence entered pursuant to his guilty plea to conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (2006). Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious grounds for appeal but questioning whether Savelyev knowingly and voluntarily waived his right to appeal, and whether justice the court sentencing properly ruled enhancement. In on the his pro obstruction se of supplemental brief, Savelyev asserts that he received ineffective assistance of counsel. The Government filed a motion to dismiss the appeal on the basis of the appellate waiver contained in Savelyev s plea agreement. A defendant may waive the waiver is knowing and intelligent. right to appeal if that United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent review of the record supports the conclusion that Savelyev voluntarily and knowingly waived his right to appeal. Thus, we conclude that the waiver is valid and enforceable. However, appellate claims. even a valid waiver does not waive all Specifically, a valid appeal waiver does not preclude a challenge to a sentence on the ground that it exceeds the statutory maximum or is based 2 on a constitutionally impermissible factor such as race, arises from the denial of a motion to withdraw a guilty plea based on ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth Amendment right to counsel in proceedings following the guilty plea. Cir. United States v. Johnson, 410 F.3d 137, 151 (4th 2005). The only claim raised by Savelyev that falls outside the scope of his appellate waiver is his assertion that counsel was ineffective. In addition, we are charged Anders with reviewing the record for unwaived error. under Thus, we grant the Government s motion to dismiss in part and dismiss the claims raised by counsel in his Anders brief. motion to dismiss with regard to We deny the Savelyev s ineffective assistance claim. Although Savelyev s claim of ineffective assistance of counsel is not barred by the terms of his appellate waiver, we nevertheless cannot entertain it. Ineffective assistance of counsel claims are generally not cognizable on direct appeal. United Rather, States to v. allow King, for 119 F.3d adequate 290, 295 development (4th of Cir. the 1997). record, a defendant must bring such a claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. See id. An exception exists when the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). record before us fails to conclusively 3 establish The ineffective assistance. Thus, Savelyev s claim is not cognizable on direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no unwaived and meritorious issues for appeal. We therefore dismiss in part and affirm in part. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, believes but counsel 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 the client. 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 4
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