United States v. Myers ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY SHANE MYERS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00023-12)
Submitted: November 30, 2006 Decided: January 26, 2007
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Patrick B. Ochsenreiter, OCHSENREITER LAW FIRM, Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Shane Myers pled guilty pursuant to a written plea
agreement to one count of conspiring to manufacture and possess
with intent to distribute over 1.5 kilograms of methamphetamine, in
violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2006).
In his plea agreement, Myers waived the right to contest
his conviction and sentence, with the exception of claims based on
ineffective assistance of counsel or prosecutorial misconduct.
Myers was sentenced to 135 months’ imprisonment and timely
appealed.
On appeal, Myers argues that he received ineffective
assistance of counsel at sentencing because counsel failed to:
(1) call the court’s attention to the fact that in the period
pending sentencing Myers had completed a forty-week drug
rehabilitation program, and (2) request a downward departure based
on this conduct. The Government has moved to dismiss the appeal,
contending it is barred by the waiver of appellate rights in Myers’
plea agreement.
When the Government seeks to enforce a waiver of
appellate rights, and there is no claim that the Government
breached the plea agreement, this court will enforce the waiver if
the record establishes the defendant knowingly and intelligently
agreed to waive the right to appeal, and the issue being appealed
is within the scope of the waiver. United States v. Blick, 408
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F.3d 162, 168-69 (4th Cir. 2005). “An appeal waiver is not
knowingly or voluntarily made if the district court fails to
specifically question the defendant concerning the waiver provision
of the plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the full
significance of the waiver.” United States v. Johnson, 410 F.3d
137, 151 (4th Cir.), cert. denied, 126 S. Ct. 461 (2005) (internal
quotations and citations omitted).
Myers does not contend that the district court failed to
adequately question him concerning the appellate waiver at his
guilty plea hearing or that he did not otherwise understand the
significance of the waiver. Rather, assuming the validity of the
waiver, Myers contends that the issue he raises is outside the
scope of waiver. We agree. Myers’ plea agreement explicitly
reserves the right to appeal based on ineffective assistance of
counsel. Accordingly, the issue he seeks to raise on appeal is
clearly outside the scope of the waiver.
Nonetheless, a claim of ineffective assistance of counsel
is not cognizable on direct appeal unless the ineffective
assistance appears conclusively from the face of the record.
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003). Here,
counsel’s decision not to argue for a downward departure based on
completion of the drug rehabilitation program was not unreasonable;
rather, counsel’s decision reflects a strategic choice. Therefore
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ineffective assistance of counsel does not appear conclusively from
the record. See Strickland v. Washington, 466 U.S. 668, 689-90
(1984).
Accordingly, while Myers’ waiver of the right to appeal
does not preclude him from bringing his appeal based on a claim of
ineffective assistance of counsel, his ineffective assistance of
counsel claim is nevertheless not cognizable on direct review. We
therefore affirm Myers’ conviction and sentence. 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
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