United States v. Turner , 59 F. App'x 561 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4149
MICHAEL LATRON TURNER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-96-10-V, CA-98-24-V)
Submitted: January 14, 2003
Decided: March 11, 2003
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Sean P. Devereux, SEAN P. DEVEREUX, P.A., Asheville, North
Carolina, for Appellant. Robert Jack Higdon, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TURNER
OPINION
PER CURIAM:
Michael Latron Turner appeals his conviction and the sentence
imposed by the district court following his guilty plea to conspiracy
to possess with intent to distribute cocaine, cocaine base, and mari-
juana, in violation of 21 U.S.C. § 846 (2000). Counsel has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Counsel states there are no meritorious issues for appeal, but contends
on Turner’s behalf that his plea was not voluntary, that the appellate
waiver contained in his plea agreement is not binding, that the district
court incorrectly calculated his sentencing guidelines range, and that
he received ineffective assistance of counsel. Turner has not filed a
pro se supplemental brief, although informed of his right to do so.
Finding no reversible error, we affirm.
The adequacy of a guilty plea generally is reviewed de novo. See
United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994). A defen-
dant’s guilty plea must be voluntary. North Carolina v. Alford, 400
U.S. 25, 31 (1970). A plea that was induced by improper threats or
promises, Brady v. United States, 397 U.S. 742, 755 (1970), or
brought about by ineffective assistance of counsel, Hill v. Lockhart,
474 U.S. 52, 56-57 (1985), is involuntary. However, declarations in
open court that a plea is knowingly and voluntarily entered carry a
strong presumption of veracity. United States v. Morrow, 914 F.2d
608, 613-14 (4th Cir. 1990). With these standards in mind, we find
Turner’s plea was both knowing and voluntary.
Whether a defendant validly waived his right to appeal is a ques-
tion of law, which this Court reviews de novo. United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992). Criminal defendants may waive
their appellate rights so long as the waiver is made knowingly and
voluntarily. Id. In determining whether the waiver has been made
knowingly and voluntarily, courts review the totality of the circum-
stances surrounding the waiver, including the experience and conduct
of the accused, the accused’s educational background and familiarity
with the terms of the plea agreement, whether the waiver was unam-
biguous and plainly embodied in the plea agreement, whether the
court accepting the plea agreement questioned the defendant about the
UNITED STATES v. TURNER 3
waiver terms in the plea colloquy, and whether the accused was repre-
sented by counsel. United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002). We have reviewed the totality of the circumstances,
including the district court’s thorough questioning of Turner during
his Fed. R. Crim. P. 11 hearing about his waiver of the right to appeal,
and we find Turner’s appellate waiver valid and enforceable. United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991); United
States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir. 1990).
Turner next contends the district court incorrectly calculated his
sentencing guidelines range. We find this issue waived by Turner’s
appellate waiver.
Claims of ineffective assistance of counsel are generally not cogni-
zable on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). To allow for adequate development of the record, claims
of ineffective assistance of counsel must ordinarily be pursued in a 28
U.S.C. § 2255 (2000) motion. United States v. Hoyle, 33 F.3d 415,
418 (4th Cir. 1994). An exception to this general rule applies when
the record conclusively establishes ineffective assistance of counsel.
King, 119 F.3d at 295. A review of the record does not conclusively
establish ineffective assistance of counsel, and Turner’s ineffective
assistance claim is therefore not cognizable in this direct appeal.
Pursuant to Anders, we have reviewed the record and find no error.
Accordingly, we affirm Turner’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests a petition be filed, but counsel believes such a petition
would be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED