United States v. Stephen Burks , 586 F. App'x 141 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4257
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN MAURICE BURKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:13-cr-00144-REP-1)
Submitted: November 20, 2014 Decided: December 5, 2014
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gregory B. English, ENGLISH LAW FIRM, PLLC, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Jessica D. Aber, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Maurice Burks pled guilty, pursuant to a
written plea agreement, to mail fraud, in violation of 18 U.S.C.
§ 1341. On appeal, Burks asserts that the district court erred
by departing upward in calculating his sentence based on the
United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
and that trial counsel was ineffective for failing to
sufficiently develop the record at sentencing. In response, the
Government contends that Burks’s waiver of appellate rights in
his plea agreement forecloses the appeal of his sentence. We
dismiss the appeal.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude an appeal of an
issue “if [the waiver] is valid and the issue appealed is within
the scope of the waiver.” United States v. Davis, 689 F.3d 349,
355 (4th Cir. 2012). “An appellate waiver is valid if the
defendant knowingly and intelligently agreed to [waive the right
to appeal].” Manigan, 592 F.3d at 627. To determine whether a
waiver is knowing and intelligent, we look to the sufficiency of
the plea colloquy and examine the totality of the circumstances.
United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).
Whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. United States
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v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S.
Ct. 126 (2013).
Burks challenges the district court’s upward departure
in calculating his Guidelines range. Our review of the record
leads us to conclude that Burks’s appellate waiver was both
knowing and intelligent. Because the waiver is valid, Burks is
precluded from challenging the calculation of his Guidelines
range.
The appellate waiver does not, however, bar Burks’s
claim that trial counsel was ineffective at sentencing. See
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Nevertheless, ineffective assistance of counsel claims are not
addressed on direct appeal unless counsel’s ineffectiveness
appears conclusively on the record. United States v. Powell,
680 F.3d 350, 359 (4th Cir. 2012). Because ineffective
assistance does not conclusively appear on the record before us,
we decline to review Burks’s ineffective assistance claims on
direct appeal. Burks may, nonetheless, reassert his claim
through a 28 U.S.C. § 2255 habeas petition in order to allow for
adequate development of the record. See Powell, 680 F.3d at
359.
Accordingly, we dismiss Burks’s appeal. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
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