United States v. Greer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILIP B. GREER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:01-cr-00045; 3:01-cr-00011-3)
Submitted: November 30, 2007 Decided: December 28, 2007
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Glenn L. Cavanagh, CAVANAGH & ASSOCIATES, P.C., Clark, New Jersey,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Philip B. Greer pled guilty pursuant to a plea agreement
to one count of embezzlement and securities fraud, in violation of
7 U.S.C.A. §§ 13(a)(2), 60(1) (West 1999 & Supp. 2007) and 18
U.S.C. § 2 (2000), one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371 (2000), one count of
conspiracy to commit money laundering, in violation of 18 U.S.C.
§§ 1956(h), 2 (West 2000 & Supp. 2007), and four counts of money
laundering. In his plea agreement, Greer agreed to waive his right
to appeal the convictions or sentence in a direct appeal or in a
post-conviction proceeding except for claims of ineffective
assistance of counsel or prosecutorial misconduct. Despite his
appeal waiver, Greer raises several issues. The Government seeks
enforcement of the appeal waiver. We dismiss the appeal.
We review the validity of a waiver of appellate rights de
novo. United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000).
If the waiver is valid and the issue appealed is covered by the
waiver, and, as here, the Government relies upon the waiver, the
court will uphold it. United States v. Blick, 408 F.3d 162, 168-69
(4th Cir. 2005). A waiver is valid if the defendant's agreement to
the waiver was knowing and voluntary. United States v. Wessells,
936 F.2d 165, 167 (4th Cir. 1991). Generally, if a district court
fully questions a defendant regarding the waiver of appellate
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rights during the Fed. R. Crim. P. 11 colloquy, the waiver is
valid. Id. at 167-68.
Here, the magistrate judge conducted a thorough Rule 11
colloquy. The magistrate judge specifically discussed the appeal
waiver provision, and Greer indicated he understood it. Greer
agreed to waive appellate review of his sentence and conviction
except for issues concerning ineffective assistance of counsel and
prosecutorial misconduct. We conclude Greer’s appeal waiver was
knowing and voluntary. We further find the Government is not
estopped from seeking enforcement of the waiver.
Insofar as Greer is attempting to frame his appellate
issues as being the result of ineffective assistance of counsel,
the claims are not cognizable on direct appeal. 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 28 U.S.C. § 2255 (2000) motion. Id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists where
the record conclusively establishes ineffective assistance. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied,
546 U.S. 1203 (2006). We find the record does not conclusively
establish ineffective assistance of counsel. We also find Greer’s
claims do not fall into “the narrow class of claims” a defendant
may raise on appeal despite an enforceable appeal waiver. See
United States v. Lemaster, 403 F.3d 216, 220 n.2 (4th Cir. 2005).
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Accordingly, because of the appeal waiver, we dismiss the
appeal. 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
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