US v. Kshawn Hill

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [998728442-2] Originating case number: 3:11-cr-00049-HEH-1. Copies to all parties and the district court/agency. [998807460]. [11-4685]

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Document: 34

Date Filed: 03/12/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4685

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KSHAWN MALIK HILL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:11-cr-00049-HEH-1)

Submitted:

February 23, 2012

Decided:

March 12, 2012

Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK,
P.C.,
Virginia
Beach,
Virginia,
for
Appellant.
Jamie L. Mickelson, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kshawn
agreement,

to

Malik
one

Hill

count

pled

of

guilty,

carjacking

pursuant

to

and

counts

two

a

plea
of

possession of a firearm in furtherance of a crime of violence.
He

was

sentenced

accordance

with

to

a

Anders

term
v.

of

520

California,

months
386

in

U.S.

prison.
738

In

(1967),

Hill’s attorney has filed a brief certifying that there are no
meritorious

issues

for

appeal

but

questioning

whether

Hill’s

guilty plea was knowing and voluntary and whether counsel was
ineffective in advising Hill to plead guilty.

The Government

moved to dismiss Hill’s appeal based on his appellate waiver.
Hill

has

not

filed

a

pro

se

supplemental

brief.

For

the

following reasons, we dismiss in part and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006).

United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).

A valid

waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver.

United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).

Whether a defendant validly

waived his right to appeal is a question of law that we review
de novo.

Id.
“The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the
right to appeal.”

Id. at 169.

This determination, often made
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based on the sufficiency of the plea colloquy and whether the
district court questioned the defendant about the appeal waiver,
ultimately

turns

circumstances.
particular

on
Id.

facts

and

an

evaluation

of

the

totality

of

the

These circumstances include all of “the
circumstances

including

the

accused.”

a

review

experience,

of

the

and

[the]

record

conduct

case,

Id. (internal quotation marks omitted).
Here,

background,

surrounding

indicates

of

the

that

the

district court fully complied with Fed. R. Crim. P. 11 when
accepting Hill’s plea and specifically reviewed the terms of his
plea agreement with him, including his appellate waiver.

Given

no indication in the record to the contrary, we find that Hill’s
waiver

of

appellate

rights

is

valid

and

enforceable.

Accordingly, we grant the Government’s motion to dismiss Hill’s
appeal of any issues covered by the waiver.
We find, however, that Hill’s appellate waiver does
not prevent our review of Hill’s claim of ineffective assistance
of counsel regarding counsel’s advice to plead guilty.

A waiver

of appeal rights will not bar appellate review of such a claim
if it contains a “colorable claim” that the plea agreement “is
tainted by constitutional error,” such as involuntariness or the
lack of the effective assistance of counsel.

See, e.g., United

States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994)
(regarding motion to withdraw guilty plea).
3

Because Hill raises

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a claim that his attorney’s ineffectiveness rendered his plea
involuntary, we deny the Government’s motion to dismiss Hill’s
appeal as to this claim.
We

affirm

the

judgment

as

to

the

ineffective

assistance of counsel claim because ineffective assistance does
not conclusively appear on the record.
States,

538

Richardson,

U.S.
195

1690,

F.3d

192,

1693-94
198

See Massaro v. United

(2003);

(4th

Cir.

United
1999)

States

v.

(ineffective

assistance claims are not cognizable on direct appeal unless the
record conclusively establishes ineffective assistance).
In accordance with Anders, we have reviewed the record
in this case, mindful of the scope of the appellate waiver, and
have

found

no

meritorious

issues

for

affirm in part and dismiss in part.

appeal.

We

therefore

This court requires that

counsel inform Hill, in writing, of his right to petition the
Supreme Court of the United States for further review.

If Hill

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move for leave
to withdraw from representation.

Counsel’s motion must state

that a copy thereof was served on Hill.

We dispense with oral

argument because the facts and legal contentions are adequately

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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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