US v. Greer

Filing 920071228

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Despite his

assistance of counsel or prosecutorial misconduct. appeal waiver, Greer raises several issues. enforcement of the appeal waiver.

The Government seeks

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. (4th Cir. 2005). United States v. Blick, 408 F.3d 162, 168-69

A waiver is valid if the defendant's agreement to United States v. Wessells,

the waiver was knowing and voluntary. 936 F.2d 165, 167 (4th Cir. 1991).

Generally, if a district court

fully questions a defendant regarding the waiver of appellate

- 2 -

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 Greer

waiver provision, and Greer indicated he understood it.

agreed to waive appellate review of his sentence and conviction except for issues concerning ineffective assistance of counsel and prosecutorial misconduct. knowing and voluntary. We conclude Greer's appeal waiver was 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. King, 119 F.3d 290, 295 (4th Cir. 1997). United States v.

Rather, to allow for

adequate development of the record, a defendant must bring his claim in a 28 U.S.C. § 2255 (2000) motion. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). Id.; United States v.

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 We also find Greer's

establish ineffective assistance of counsel.

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).

- 3 -

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

- 4 -