United States v. Salazar-Acuna , 194 F. App'x 108 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAULITO SALAZAR-ACUNA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-00-212)
Submitted: July 28, 2006 Decided: August 16, 2006
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Paulito Salazar-Acuna pled guilty to conspiracy to
possess with intent to distribute and distribute cocaine and
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). He
was sentenced to 168 months of imprisonment. The Government has
moved to dismiss Salazar-Acuna’s appeal based upon a waiver of
appellate rights in his plea agreement.
In his plea agreement, Salazar-Acuna waived his right to
contest either the conviction or sentence in any direct appeal or
post-conviction proceeding, except for claims of ineffective
assistance of counsel and prosecutorial misconduct. Salazar-Acuna
first argues that his waiver of appellate rights was not knowing
and voluntary. We review 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 issue
being appealed is within the scope of 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); United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). Generally,
if the district court fully questions a defendant regarding the
waiver of his right to appeal during the colloquy under Federal
Rule of Criminal Procedure 11, the waiver is both valid and
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enforceable. Wessells, 936 F.2d at 167-68. We conclude that the
waiver was informed and voluntary.
Because ineffective assistance of counsel claims fall
outside the scope of the waiver in this case, we deny the
Government’s motion to dismiss. We conclude, however, that
Salazar-Acuna waived the right to proceed on his claim that the
court erred in denying him a reduction under the safety valve
provision of the guidelines. We therefore dismiss this portion of
the appeal.
With respect to Salazar-Acuna’s claims of ineffective
assistance of counsel, such claims are generally not cognizable on
direct appeal. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Rather, to allow for adequate development of the
record, a defendant must bring his claim in a motion under 28
U.S.C. § 2255 (2000). See id.; United States v. Hoyle, 33 F.3d
415, 418 (4th Cir. 1994). An exception exists when the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our review of the
record leads us to conclude that any deficiencies in counsel’s
performance are not conclusively demonstrated.
Accordingly, we dismiss the appeal in part and affirm in
part. We further grant the Government’s motion to strike portions
of the joint appendix. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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