United States v. Kelley , 242 F. App'x 60 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4968
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGGIE LAMAR KELLEY, a/k/a Lil Red,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:04-cr-00998-CMC-1)
Submitted: May 30, 2007 Decided: July 5, 2007
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Johnny E. Watson, Sr., WATSON LAW FIRM, Columbia, South Carolina,
for Appellant. Christopher Todd Hagins, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reggie Lamar Kelley appeals his conviction and 360-month
sentence following his guilty plea to possession of a firearm in
furtherance of a drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1) (2000). Kelley timely appealed, claiming his plea was
unknowing and involuntary and that he was denied effective
assistance of counsel. Kelley also claims the district court
improperly denied his motion to withdraw his guilty plea and that
his sentence is unreasonable. The Government has moved to dismiss
the appeal on the grounds that Kelley validly waived his right to
appeal in his plea agreement. We grant the motion to dismiss in
part, deny it in part, and affirm in part.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. See United States v. Blick, 408 F.3d
162, 169 (4th Cir. 2005). Generally, if the district court fully
questions a defendant regarding the waiver of his right to appeal
during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid
and enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir.), cert. denied, 126 S. Ct. 461 (2005). Whether a
defendant validly waived his right to appeal is a question of law
that we review de novo. See Blick, 408 F.3d at 168. Our review of
the record reveals that Kelley knowingly and voluntarily waived his
right to appeal his conviction and sentence. We therefore grant
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the Government's motion to dismiss Kelley’s appeal to the extent it
challenges Kelley’s sentence.
We conclude, however, that Kelley’s assertion that his
guilty plea was involuntary and that the district court erred by
refusing his request to withdraw it constitutes an exception to the
appellate waiver because it presents a “colorable” constitutional
claim. See, e.g., United States v. Attar, 38 F.3d 727, 733 n.2
(4th Cir. 1994). Accordingly, we deny the Government’s motion to
dismiss as to this claim. Nevertheless, while we possess
jurisdiction to consider this claim, we find it to be without
merit. The record confirms that the district court conducted a
thorough Rule 11 hearing, ensuring that Kelley’s plea was knowing
and voluntary in all respects. Kelley’s belated claim that he did
not understand the consequences of his plea is simply belied by the
record.
In addition, Kelley’s appellate waiver does not preclude
our review of Kelley’s ineffective assistance of counsel claim, and
we deny the motion to dismiss as to that claim, as well.
Ineffective assistance of counsel claims, however, are not
generally cognizable on direct appeal unless ineffective assistance
“conclusively appears” on the record. See United States v. James,
337 F.3d 387, 391 (4th Cir. 2003). After reviewing the record, it
does not “conclusively appear” that Kelley’s attorney’s assistance
was ineffective. This claim is not cognizable on direct appeal and
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must instead be asserted in an appropriate motion for post-
conviction relief.
Accordingly, we grant the Government’s motion to dismiss
Kelley’s appeal of his sentence, deny the Government’s motion to
dismiss Kelley’s appeal as to his challenge to his guilty plea and
his claim that his trial attorney provided ineffective assistance,
and affirm as to these claims. 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
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