United States v. Williams , 269 F. App'x 279 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY DEE WILLIAMS,
Defendant - Appellant.
No. 06-4794
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM BRIAN TORRENCE,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00296-1; 3:04-cr-00296-2)
Submitted: February 14, 2008 Decided: March 11, 2008
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Leslie Carter Rawls, Charlotte, North Carolina; Eric J. Foster, LAW
OFFICE OF RICK FOSTER, Asheville, North Carolina, for Appellants.
Karen S. Marston, Adam Christopher Morris, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina; Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
William Brian Torrence and Billy Dee Williams appeal
their sentences imposed after pleading guilty to conspiracy to
possess with intent to distribute 1.5 kilograms or more of a
substance containing cocaine base, in violation of 21 U.S.C. §§ 841and 846 (2000) and knowingly and unlawfully using and carrying a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C.A. § 924(c) (West 2000 and Supp. 2007). On
appeal, Torrence argues that the district court erred by imposing
a sentence “greater than necessary” to comply with the sentencing
goals in 18 U.S.C.A. § 3553(a) (West 2000 and Supp. 2007).
Williams argues that he received ineffective assistance of counsel
at sentencing.
Prior to entering their guilty pleas, Williams and
Torrence entered into plea agreements with the Government. The
Government has filed a motion to dismiss their consolidated appeals
based on their waiver of appellate rights in their plea agreements.
For the reasons that follow, we grant the Government’s motion with
respect to Torrence’s appeal, deny the motion with respect to
Williams’ appeal, and affirm the judgment of the district court
with respect to Williams.
This court reviews the validity of a waiver de novo,
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
uphold a waiver of appellate rights if the waiver is valid and the
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issue being appealed is covered by the waiver. United States v.
Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is valid if
the defendant’s agreement to the waiver was knowing and voluntary.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Generally, if a district court fully questions a defendant
regarding his waiver of appellate rights during the Fed. R. Crim.
P. 11 colloquy, the waiver is valid. United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991).
In a valid plea agreement, a defendant may waive the
right to appeal under 18 U.S.C. § 3742 (2000). See United States
v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). An appeal waiver,
however, does not preclude appeals: (1) for a sentence on the
ground that it exceeds the statutory maximum or is based on a
constitutionally impermissible factor such as race; (2) from the
denial of a motion to withdraw a guilty plea based on ineffective
assistance of counsel; or (3) concerning a violation of the Sixth
Amendment right to counsel in proceedings following the guilty
plea. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005). In addition, a waiver of appellate rights cannot foreclose
a colorable constitutional challenge to the voluntariness of the
guilty plea. See, e.g., Attar, 38 F.3d at 732-33 & n.2.
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We have reviewed the record in this case and determine
that the Appellants’ pleas were knowing and voluntary. Thus,
Torrence and Williams both waived their right to appeal, subject to
the exceptions in the waivers and those provided by law.
Torrence argues that, because his sentence was “greater
than necessary” to comply with the sentencing goals in 18 U.S.C.A.
§ 3553(a), his appeal is not barred by his waiver as he was
sentenced beyond the maximum allowed by law. Torrence’s argument
is without support or merit. Accordingly, we grant the
Government’s motion to dismiss his appeal.
Unlike Torrence, Williams’ claim of ineffective
assistance of counsel at sentencing falls within a specifically
enumerated exception to his appellate waiver. Thus, his appeal is
not barred by his waiver. However, claims of ineffective
assistance of counsel 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). We
have reviewed the record and do not find that it conclusively
establishes that Williams’ counsel was ineffective at sentencing.
Accordingly, we grant the Government’s motion with respect to
Torrence’s appeal, deny the motion with respect to Williams’
appeal, and affirm the judgment of the district court with respect
to Williams. We dispense with oral argument because the facts and
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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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