US v. Ferose Khan, No. 11-4864 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4864 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FEROSE KERRY KHAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:11-cr-00143-LMB-1) Submitted: September 25, 2012 Decided: November 8, 2012 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Ferose Kerry Khan, Appellant Pro Se. Dennis Michael Fitzpatrick, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ferose Kerry Khan appeals his conviction of conspiracy to distribute cocaine, in violation of 21 U.S.C. ยง 846 (2006), pursuant to a written plea agreement, and his sentence of sixty months imprisonment. He argues that his plea was unknowing and involuntary, that the indictment was defective, that the factual basis for his plea was insufficient, that the district court erred in calculating his Guidelines range, and that counsel was ineffective for various reasons. The Government seeks enforcement of the appellate waiver in Khan s plea agreement. We dismiss in part and affirm in part. Khan s challenge to the voluntariness of his guilty plea and his claims of ineffective assistance of counsel are not barred by the waiver provision. We Government s motion to dismiss in part. therefore deny the Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing, however, we conclude that Khan knowingly and voluntarily entered his guilty plea. Accordingly, we affirm the conviction on this ground. With regard to Khan s ineffective assistance of counsel claims, we decline to review those claims on direct appeal because counsel s ineffectiveness does not conclusively appear from the record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006) (providing standard). 2 Turning to the validity of the appellate waiver provision, our review of the record leads us to conclude that Khan voluntarily waived his right to appeal. issues Khan raises on appeal that are The conviction unrelated to the voluntariness of his guilty plea and all of the issues he raises that challenge his sentence fall squarely within the scope of his waiver of appellate rights. We therefore grant the Government s motion to dismiss in part and dismiss this portion of the appeal. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED IN PART; AFFIRMED IN PART 3
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