United States v. Cook , 401 F. App'x 857 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4937
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRAN DEVON COOK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cr-00161-D-1)
Submitted: November 18, 2010 Decided: December 1, 2010
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
William Dial Delahoyde, WILLIAM D. DELAHOYDE, PLLC, Raleigh,
North Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Iran Devon Cook appeals from his conviction and
262-month sentence following his guilty plea to one count of
possession with intent to distribute crack cocaine, in violation
of 21 U.S.C. § 841(a) (2006); and one count of possession of a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A) (2006). Cook’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), stating that there are no meritorious issues for
appeal, but questioning whether Cook received ineffective
assistance of trial counsel. Cook, advised of his right to file
a pro se supplemental brief, has not done so. The Government
has moved to dismiss Cook’s appeal based upon a waiver of
appellate rights in his plea agreement.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district
court questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is
valid and enforceable. United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005). The question of whether a defendant
validly waived her right to appeal is a question of law that we
review de novo. Manigan, 592 F.3d at 626.
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Our review of the record leads us to conclude that
Cook knowingly and voluntarily waived the right to appeal a
sentence within the Guideline range established at sentencing.
As Cook’s sentence was within that range, he has waived review
of his sentence. We thus grant in part the Government’s motion
to dismiss the appeal.
The appellate waiver does not, however, encompass the
ineffective assistance of trial counsel claim raised by Cook’s
appellate counsel. Cook claims that counsel rendered
ineffective assistance by failing to challenge Cook’s criminal
history and failing to argue for a sentence below the advisory
Guidelines range. We conclude, however, that these claims must
be considered in a post-conviction proceeding brought pursuant
to 28 U.S.C.A. § 2255 (West Supp. 2010), because counsel’s
alleged deficiencies do not conclusively appear on the record.
See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010); United States v. Benton, 523 F.3d 424, 435 (4th Cir.
2008).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the plea agreement’s waiver of appellate rights. We
therefore dismiss Cook’s appeal in part and affirm in part.
This court requires that counsel inform Cook, in writing, of the
right to petition the Supreme Court of the United States for
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further review. If Cook 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. Counsel’s motion must state that a copy thereof
was served on Cook. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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