United States v. Faggart ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4377
MONICA LEEANN FAGGART,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-01-184-9)
Submitted: March 19, 2003
Decided: March 27, 2003
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael A. Kolb, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FAGGART
OPINION
PER CURIAM:
Monica Leeann Faggart appeals her conviction and sentence of
sixty months’ imprisonment for conspiring to possess with intent to
distribute cocaine and cocaine base. Faggart’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing
her guilty plea was not entered into knowingly and voluntarily and the
district court sentenced her incorrectly. Additionally counsel alleges
claims of ineffective assistance of counsel and prosecutorial miscon-
duct. However, counsel states that, in his view, there are no meritori-
ous issues. Advised of her right to file a pro se supplemental brief,
Faggart has not done so. Finding no reversible error, we affirm.
Faggart’s plea agreement contained a waiver of her right to appeal
her conviction and sentence. Whether a defendant validly waived her
right to appeal is a question of law, which this court reviews de novo.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). A waiver
of a defendant’s right to appeal contained in a valid plea agreement
is enforceable if it is "the result of a knowing and intelligent decision
to forego the right to appeal." United States v. Wessells, 936 F.2d 165,
167 (4th Cir. 1991). We have reviewed Faggart’s plea agreement and
the Fed. R. Crim. P. 11 hearing and conclude she knowingly and
intelligently waived her right to appeal. Further, we have reviewed
Faggart’s claims challenging the validity of her guilty plea and find
them to be without merit. Consequently, the valid appeal waiver pre-
cludes review of her sentencing issues.
Faggart argues her counsel was ineffective. Claims of ineffective
assistance of counsel are generally not cognizable on direct appeal
unless the trial record conclusively establishes ineffective assistance
of counsel. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). To allow for adequate development of the record, ineffective
assistance of counsel claims generally should be pursued in a 28
U.S.C. § 2255 (2000) proceeding. See United States v. Hoyle, 33 F.3d
415, 418 (4th Cir. 1994). Because review of the record in this appeal
does not conclusively establish ineffective assistance of counsel, we
conclude Faggart’s claim should be brought, if at all, in a § 2255 pro-
ceeding, not on direct appeal. Faggart makes no specific allegation of
UNITED STATES v. FAGGART 3
prosecutorial misconduct, and none is apparent in the record on
appeal.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we affirm Fag-
gart’s conviction and sentence. We deny counsel’s motion to with-
draw. This court requires that counsel inform his client, in writing, of
her right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED