Filed: Feb. 18, 2010
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4679 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RAPHAEL DAVONNE POWELL, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:08-cr-00328-F-1) Submitted: January 28, 2010 Decided: February 18, 2010 Before MICHAEL, KING, and SHEDD, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4679 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RAPHAEL DAVONNE POWELL, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:08-cr-00328-F-1) Submitted: January 28, 2010 Decided: February 18, 2010 Before MICHAEL, KING, and SHEDD, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curia..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4679
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAPHAEL DAVONNE POWELL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00328-F-1)
Submitted: January 28, 2010 Decided: February 18, 2010
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant. Anne Margaret Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raphael Davonne Powell pled guilty pursuant to a plea
agreement to one count of conspiracy to commit a Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(b) (2006), and two
counts of possession of a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c) (2006).
Powell was sentenced to 73 months in prison on the Hobbs Act
count, 84 months on the first firearm charge, and 300 months on
the second charge, to be served consecutively. In this appeal,
Powell raises two claims challenging his sentence and one claim
challenging the effectiveness of his trial counsel. The
Government has moved to dismiss the appeal. The motion to
dismiss the sentencing claims is based on the appellate waiver;
the argument for dismissal of the ineffective counsel claim is
based on the fact that counsel’s ineffectiveness is not apparent
on the face of the record before us. For the reasons that
follow, the Government’s motion to dismiss will be granted in
part and denied in part, and Powell’s appeal will be dismissed
in part and affirmed in part.
It is well-settled that “a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C.
§ 3742.” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). “Whether a defendant has effectively waived the right to
appeal is an issue of law that we review de novo.” United
2
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). In
undertaking that review, this court will enforce an appellate
waiver where such a waiver “is knowing and intelligent and the
issue sought to be appealed falls within the scope of the appeal
waiver.” United States v. Poindexter,
492 F.3d 263, 270
(4th Cir. 2007). An appellate waiver is generally considered to
be knowing and intelligent where the court specifically
questioned the defendant regarding the waiver during the Federal
Rule of Criminal Procedure 11 colloquy and the record indicates
that the defendant understood the significance of the waiver.
See United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005).
Further, only a “narrow class of claims involves
errors that the defendant ‘could not have reasonably
contemplated’ when the plea agreement was executed,” and
therefore are excluded from the scope of the waiver.
Poindexter, 492 F.3d at 270 (quoting
Blick, 408 F.3d at 172).
Claims that proceedings following the guilty plea were conducted
in violation of the defendant’s Sixth Amendment right to
counsel, see United States v. Attar,
38 F.3d 727, 732-33 (4th
Cir. 1994), or that a sentence was imposed in excess of the
statutory maximum penalty “or based on a constitutionally
impermissible factor such as race,” United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992), fall within the category of
claims excluded from an appellate waiver.
3
At Powell’s Rule 11 hearing, the Government stated in
open court all terms of the plea agreement, including the
appellate waiver, 1 and Powell indicated that he understood all
aspects of the agreement. The district court also raised the
issue of the appellate waiver numerous times with Powell, 2 and
Powell indicated his understanding of his right to appeal only
an upward departure from the advisory guidelines established at
sentencing. Powell, a high school graduate, was represented by
counsel at the hearing, and the court determined that he was
competent and had entered the agreement knowingly and
intelligently. As the record demonstrates that Powell knowingly
1
Powell’s appellate waiver required him:
To waive knowingly and expressly the right to appeal
whatever sentence is imposed on any ground, including
any appeal pursuant to 18 U.S.C. § 3742, reserving
only the right to appeal from a sentence in excess of
the advisory Guideline range that is established at
sentencing, and further to waive all rights to contest
the conviction or sentence in any post-conviction
proceeding, including one pursuant to 28 U.S.C.
§ 2255, excepting the Defendant’s right to appeal
based upon grounds of ineffective assistance of
counsel and prosecutorial misconduct not known to the
Defendant at the time of the Defendant’s guilty plea.
2
Powell claims in his response to the Government’s motion
to dismiss that the district court’s statements regarding his
“right to appeal” preclude application of the waiver. However,
the court did not make any statements that contradicted the
waiver, and in fact repeatedly reminded Powell that he had
waived his right to appeal except in very limited circumstances.
4
and voluntarily agreed to the appellate waiver, we find the
waiver valid and enforceable.
Further, Powell does not allege and the record does
not reflect that his sentence exceeds the applicable Guidelines
range or the statutory maximum penalties, or that his sentence
was based on a constitutionally impermissible factor.
Therefore, as his sentencing issues are within the scope of the
valid waiver, we grant in part the Government’s motion to
dismiss the appeal, and dismiss the appeal of Powell’s sentence.
Powell also alleges that he was deprived of his right
to the effective assistance of counsel following his guilty
plea, asserting that his trial counsel “fail[ed] to pursue
viable objections to the Presentence Report that would have
lowered Powell’s Guidelines sentencing range for the Hobbs Act
conspiracy charge.” Because Powell’s appellate waiver expressly
reserved his right to appeal on the ground of ineffective
assistance of counsel, this claim is not within the scope of the
appellate waiver, and we may not dismiss it on that ground. The
Government’s motion to dismiss this unwaived claim constitutes,
in effect, a motion for summary disposition, which we reserve
for extraordinary circumstances not present here. 4th Cir. R.
27(f). Therefore, we deny the Government’s motion to dismiss in
part, and proceed to address the ineffective assistance claim
raised by Powell.
5
“A claim of ineffective assistance of counsel should
be raised by a habeas corpus motion under 28 U.S.C. § 2255 in
the district court and not on direct appeal, unless it
conclusively appears from the record that defense counsel did
not provide effective representation.” United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal
quotation marks and alterations omitted). Powell contends that
the ineffective assistance provided by his trial counsel is
apparent on the face of the record, and that any argument by the
Government that counsel may have had a strategic reason for not
raising the specific objections must be rejected. However, the
appellate record contains no affidavit or response from trial
counsel indicating why he chose not to make the objections at
issue; therefore, any conclusion by this court regarding his
decision would be premised on surmise or speculation. Thus, we
decline on direct appeal to consider Powell’s arguments
regarding his trial counsel’s ineffective assistance. See
United States v. Allen,
491 F.3d 178, 191-92 (4th Cir. 2007).
Accordingly, we grant the Government’s motion to
dismiss in part and dismiss Powell’s challenge to his sentence.
We deny the motion to dismiss in part and affirm Powell’s
conviction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
6
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
7
