United States v. Cassell ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4066
PAUL FRANKLIN CASSELL, a/k/a
Rabbit,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-106)
Submitted: December 21, 2001
Decided: January 10, 2002
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Danny T. Ferguson, Winston-Salem, North Carolina, for Appellant.
Benjamin H. White, Jr., United States Attorney, Steven H. Levin,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
2 UNITED STATES v. CASSELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Paul Franklin Cassell appeals his conviction and sentence entered
on his guilty plea to his role in a conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846 (1994). Cassell’s plea agreement con-
tained a waiver provision which "expressedly waive[d] the right to
appeal whatever sentence [was] imposed on any ground" in exchange
for his plea of guilty. Nonetheless, on appeal, Cassell suggests that his
guilty plea was not made knowingly or voluntarily and attempts to
assign error to the district court’s calculation of his sentence. Cassell
also contends that the district court erred in failing to sua sponte dis-
miss the indictment against Cassell because the indictment did not
contain allegations regarding a specific quantity or type of controlled
substance. Finally, Cassell raises several claims of ineffective assis-
tance of counsel. Because we conclude that Cassell’s plea was know-
ing and voluntary, we are constrained to give effect to Cassell’s
waiver of his appellate rights concerning his sentence. Further, we
find no reversible error with respect to his contentions regarding
either the indictment or his counsel’s performance. Accordingly, we
affirm Cassell’s plea and conviction and dismiss the portion of this
appeal which attacks his sentence.
The Government urges this Court to give effect to the waiver of
appeal rights contained in Cassell’s plea agreement and dismiss the
appeal. A defendant may waive the right to appeal his sentence if the
waiver is knowing and intelligent. See United States v. Broughton-
Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). A waiver is generally valid
if the district court questions the defendant about it during the Rule
11 colloquy and determines that the waiver was knowing and volun-
tary. See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Cassell does not address the waiver provision in his appellate brief,
however, Cassell’s waiver as described in the plea agreement was
limited to his right to challenge any sentence or the manner in which
UNITED STATES v. CASSELL 3
that sentence was determined. Therefore, a challenge to the validity
of the guilty plea itself is not precluded by the waiver of appeal rights
concerning Cassell’s sentence. See United States v. Wiggins, 905 F.2d
51, 53 (4th Cir. 1990). The waiver contained in the plea agreement
did not waive those issues raised in Cassell’s appeal which are rea-
sonably related to the voluntary nature of his guilty plea.
Cassell contends that his plea was not offered knowingly and vol-
untarily. However, at Cassell’s hearing, the district court complied in
all respects with Fed. R. Crim. P. 11. An "appropriately conducted
Rule 11 proceeding . . . must be recognized to raise a strong presump-
tion that the plea is final and binding." United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc). In determining whether the
proceeding comported with Rule 11, this Court should accord defer-
ence to the trial court’s decision as to how best to conduct the man-
dated colloquy with the defendant. United States v. DeFusco, 949
F.2d 114, 116 (4th Cir. 1991). Moreover, any technical violation of
the Rule is evaluated for harmless error. See Fed. R. Crim. P. 11(h);
DeFusco, 949 F.2d at 117. As a result, this Court may vacate a con-
viction entered on a defendant’s guilty plea only if the trial court’s
violations of Rule 11 affected the defendant’s substantial rights.
DeFusco, 949 F.2d at 117.
In this case, the district court conducted a thorough hearing, and
was aware that Cassell was unable to read the indictment and plea
agreement. The court was further aware of Cassell’s ingestion of
medication, including Xanax, on the morning of the hearing. Through
its questions during the hearing, the court verified Cassell’s ability to
understand the proceedings and that counsel had read the documents
to Cassell. Consequently, we find that the district court fully complied
with Rule 11 and properly found that Cassell’s plea was knowing and
voluntary. See id. at 116-17. Cassell’s conviction entered on his guilty
plea is accordingly affirmed and Cassell’s challenge on appeal to the
manner of calculation of his sentence is dismissed.
Cassell’s remaining claims need not detain us for long. We find no
reversible error in the district court’s failure to sua sponte dismiss the
indictment. See United States v. Promise, 255 F.3d 150, 160 (4th Cir.
2001) (en banc); United States v. Angle, 254 F.3d 514, 518 (4th Cir.)
(en banc) (same), cert. denied, 122 S. Ct. 309 (2001). Generally, Cas-
4 UNITED STATES v. CASSELL
sell’s claim of ineffective assistance of counsel would not be appro-
priate for direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). An exception to this general rule applies when the record
conclusively establishes that the defendant did not receive constitu-
tionally sufficient assistance of counsel. Id. No such error appears
from the record in this case.
Cassell’s conviction is affirmed and his challenge to the calculation
of his sentence is dismissed. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART; DISMISSED IN PART