United States v. Tron Reid ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6314
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TRON TYRONE DIXON REID,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00128-MR-DLH-12)
Submitted: September 29, 2011 Decided: October 5, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tron Tyrone Dixon Reid appeals the amended criminal
judgment entered following his guilty plea, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. § 846 (2006).
On appeal, Reid argues that his eighty-seven-month sentence was
unreasonable in light of the Fair Sentencing Act of 2010 and
that counsel was ineffective for failing to file a motion for
downward departure. The Government asserts that Reid’s appeal
is barred by the appellate waiver provision in his plea
agreement. We affirm the district court’s amended judgment in
part and dismiss Reid’s appeal in part.
We review a defendant’s waiver of appellate rights de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted); see United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (providing standard). Generally, if the district
court fully questions the defendant about the waiver during the
Federal Rule of Criminal Procedure 11 plea colloquy, the waiver
is valid and enforceable. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). We will enforce a valid waiver so
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long as “the issue being appealed is within the scope of the
waiver.” Blick, 408 F.3d at 168.
In his plea agreement, Reid agreed to waive the right
to contest the conviction and/or the sentence except for claims
of ineffective assistance of counsel and prosecutorial
misconduct. Reid asserts no error in the plea colloquy nor does
he challenge the validity of his appellate waiver. Our review
of the record leads us to conclude that Reid’s waiver was
knowing and intelligent.
Turning to the scope of the waiver, we conclude that
Reid’s challenge to his sentence based on the applicability of
the Fair Sentencing Act falls within the scope of the appellate
waiver provision. Thus, we dismiss this portion of the appeal.
The waiver provision, however, does not bar Reid’s challenge to
his sentence based on ineffective assistance of counsel. “A
defendant can raise the claim of ineffective assistance of
counsel . . . on direct appeal if and only if it conclusively
appears from the record that his counsel did not provide
effective assistance . . . .” United States v. Martinez, 136
F.3d 972, 979 (4th Cir. 1998); see Strickland v. Washington, 466
U.S. 668, 688, 694 (1984) (providing standard). We conclude
that the record does not conclusively demonstrate that counsel
was ineffective; thus, we decline to consider Reid’s ineffective
assistance claim on direct appeal.
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Accordingly, we affirm the district court’s amended
judgment in part with regard to the ineffective assistance claim
and dismiss the remainder of the appeal as barred by the waiver
provision in the plea agreement. 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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