Filed: Jan. 27, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4741 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TERRY LEE HAGAN, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:13-cr-00057-1) Submitted: January 23, 2014 Decided: January 27, 2014 Before MOTZ, GREGORY, and THACKER, Circuit Judges. Affirmed in part, dismissed in part by unpublished per curiam
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4741 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TERRY LEE HAGAN, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:13-cr-00057-1) Submitted: January 23, 2014 Decided: January 27, 2014 Before MOTZ, GREGORY, and THACKER, Circuit Judges. Affirmed in part, dismissed in part by unpublished per curiam o..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4741
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRY LEE HAGAN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:13-cr-00057-1)
Submitted: January 23, 2014 Decided: January 27, 2014
Before MOTZ, GREGORY, and THACKER, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. Richard Gregory McVey, Assistant United
States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Lee Hagan pleaded guilty to distribution of
oxycodone, in violation of 21 U.S.C. § 841(a) (2012). The
district court sentenced Hagan to 216 months of imprisonment and
he now appeals. Appellate counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), questioning
whether Hagan’s sentence is reasonable. Hagan filed pro se
supplemental briefs raising additional issues. In addition, the
Government has filed a motion to dismiss the appeal based on the
waiver in the plea agreement. For the reasons that follow, we
affirm in part and grant the Government’s motion to dismiss in
part.
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). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (citation omitted). To determine
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whether a waiver is knowing and intelligent, we examine “the
totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks and citation omitted).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991).
We have thoroughly reviewed the record and conclude
that the district court fully complied with the requirements of
Rule 11. We further conclude that Hagan’s waiver of his
appellate rights was knowing and intelligent. The appellate
waiver forecloses Hagan’s right to appeal any issues related to
his conviction or the sentence imposed, except a sentence above
the statutory maximum, and excepting claims of ineffective
assistance of counsel. Here, the district court sentenced Hagan
below the statutory maximum. Therefore, Hagan has waived
appellate review of his conviction and sentence.
In his pro se supplemental briefs, however, Hagan
argues that trial counsel rendered ineffective assistance. To
prove a claim of ineffective assistance of counsel, a defendant
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must show (1) “that counsel’s performance was deficient,” and
(2) “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Moreover,
we may address a claim of ineffective assistance on direct
appeal only if the lawyer’s ineffectiveness conclusively appears
on the record. United States v. Baldovinos,
434 F.3d 233, 239
(4th Cir. 2006). We have thoroughly reviewed the record and
conclude that Hagan has failed to demonstrate that ineffective
assistance of counsel conclusively appears on the record. *
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment in part and
grant the Government’s motion to dismiss in part. This court
requires that counsel inform Hagan, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Hagan 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 Hagan. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
*
We have also considered the remaining issues in Hagan’s
pro se supplemental briefs and conclude that they lack merit.
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materials before the court and argument would not aid in the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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