US v. Morris Reid, No. 10-5278 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5278 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MORRIS ANTONIO REID, Defendant Appellant.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 Affirmed in part; dismissed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). imprisonment. applied On appeal, Reid argues that the district court improper trial counsel He was sentenced to 102 months enhancements was to ineffective his at offense level sentencing by and that 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 United States v. Manigan, 592 F.3d 621, his appellate rights. 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. 168 (4th Cir. 2005). United States v. Blick, 408 F.3d 162, 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 2 a waiver is knowing and intelligent, this circumstances. court Id. examines the totality of the 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 plea that agreement. he read The and district understood court each read the term of the appellate wavier provision in its entirety and asked Reid whether he understood the appellate understood. rights he was giving up. Reid indicated he 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. the waiver. Reid has not challenged the validity of Accordingly, Reid s challenges to his sentence are within the scope of the waiver and may not be reviewed by this court. Reid assistance sentencing. in also asserts failing This issue to that counsel present falls outside provided certain the ineffective arguments appellate at waiver provision, and we deny the motion to dismiss as to this claim. 3 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 dismiss in part and deny it in part. Reid s sentence and court. We district facts and materials legal before otherwise dispense Government s the oral judgment argument contentions are adequately the and argument court to We dismiss the appeal of affirm with motion of the because the presented would not in the aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4
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