United States v. Loney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIRK L. LONEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:02-cr-00290-REP-1)
Submitted: August 31, 2009 Decided: September 10, 2009
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Edwin F. Brooks, EDWIN F. BROOKS, L.L.C., Richmond, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kirk Loney pled guilty to possession with intent to
distribute five or more grams of cocaine base (crack). The
district court imposed a 105-month sentence. Counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), acknowledging that Loney waived his right to appeal his
sentence and asserting that there were no meritorious issues for
appeal. The Government has filed a motion to dismiss the appeal
asserting that, pursuant to the appellate waiver contained in
Loney’s plea agreement, there is no basis to challenge the
sentence imposed. Loney has opposed the motion to dismiss and
has filed a pro se supplemental brief in which he challenges the
validity of his guilty plea and asserts that counsel was
ineffective.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990) (waiver
upheld as voluntarily and intelligently made). Whether a
defendant has waived his right to appeal is an issue of law
subject to de novo review. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). A waiver will preclude appeal of a
specific issue if the record establishes that the waiver is
valid and that the issue is within the scope of that waiver.
United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994).
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Loney asserts that his plea was not voluntary because
he was brainwashed and threatened with a life sentence if he did
not plead guilty and he was promised a five-to-seven year
sentence if he entered the plea. Loney asserts that he was
under stress at the time of the plea hearing and that he is
factually innocent.
During the plea hearing pursuant to Fed. R. Crim. P.
11, Loney testified that he was “under a lot of strain” but that
he was sure he was competent to make the decision to plead
guilty. Loney’s attorney explained that Loney was under strain
because of physical injuries he received in a car wreck
preceding his arrest. Counsel stated that he knew of no reason
why Loney could not make a knowing, intelligent, and voluntary
decision with respect to the plea. The court noted that Loney
responded “appropriately and accurately to the questions” asked.
The court explained and Loney stated that he
understood the nature of the charge and the minimum and maximum
sentences. Loney stated that he had discussed the plea
agreement, possible defenses and sentences with counsel and was
entirely satisfied with counsel’s services. The court also
ensured that Loney understood that, in his plea agreement, he
was waiving the right to appeal.
Loney admitted that he was pleading guilty because he was,
in fact, guilty of the charged offense. In response to the
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court’s inquiry whether Loney had been threatened, or whether
any promises were made to induce his plea, he replied, “No,
ma’am.” Loney’s conclusory statements on appeal that he was
coerced into pleading guilty and that his will was overborne are
insufficient to show that his sworn statements made during the
plea hearing as to the voluntariness of his plea, lack of any
threats, and his satisfaction with counsel were not true. See
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Beck v.
Angelone, 261 F.3d 377, 395-96 (4th Cir. 2001) (absent “clear
and convincing evidence” to the contrary, defendant is bound by
statements made under oath at Rule 11 hearing). We therefore
find that Loney’s guilty plea was knowingly and voluntarily
entered. Additionally, we find that the appeal waiver, which
was contained in the plea agreement and which Loney acknowledged
during the Rule 11 hearing, is valid and enforceable. See
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(upholding appeal waiver in plea agreement if court fully
questions defendant about waiver during Rule 11 colloquy);
United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991)
(same). Accordingly, any challenge to Loney’s 105-month
sentence is waived.
Loney also contends his attorney was ineffective with
respect to his plea. Because the record does not conclusively
demonstrate ineffective assistance, this claim should be raised
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in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion rather than on
direct appeal. See United States v. King, 119 F.3d 290, 295
(4th Cir. 1997); United States v. DeFusco, 949 F.2d 114, 120-21
(4th Cir. 1991).
Accordingly, we grant the Government’s motion to
dismiss in part as it relates to Loney’s sentence. As for
Loney’s claims regarding the validity of his Rule 11 hearing and
ineffective assistance of counsel, we deny the Government’s
motion to dismiss as to those claims, but nonetheless affirm the
district court’s judgment. As required by Anders, we have
reviewed the entire record and have found no meritorious issues
for appeal. This court requires that counsel inform his client,
in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may renew his motion for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. 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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