US v. Deon Powell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999019657-2] Originating case number: 3:11-cr-00177-1 Copies to all parties and the district court/agency. [999079802].. [12-4685]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4685

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEON POWELL, a/k/a Deon Archie Powell,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:11-cr-00177-1)

Submitted:

March 19, 2013

Decided:

April 4, 2013

Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant. Monica D. Coleman, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Deon
imprisonment

Powell
after

was

sentenced

pleading

to

guilty,

seventy-one

pursuant

to

months’
a

plea

agreement, to possession of heroin, in violation of 18 U.S.C.
§ 841(a)(1) (2006).

On appeal, counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that he
found no meritorious issues for appeal but questioning whether
the district court erred in denying Powell’s pretrial motions to
suppress and overruling Powell’s objection to his drug quantity
calculation.
reiterating

Powell
counsel’s

alleged errors.
appeal,

filed

a

arguments

pro
and

se

supplemental

asserting

brief

several

other

The Government has moved to dismiss Powell’s

asserting

that

he

waived

sentence in the plea agreement.

the

right

to

appeal

his

We dismiss in part and affirm

in part.
We review de novo whether a defendant has effectively
waived the right to appeal.

United States v. Marin, 961 F.2d

493, 496 (4th Cir. 1992).

An appellate waiver must be “the

result of a knowing and intelligent decision to forgo the right
to appeal.”
1146

(4th

United States v. Broughton-Jones, 71 F.3d 1143,

Cir.

omitted).

To

intelligent,
circumstances,

1995)

(internal

determine

this

whether

court

including

quotation
a

examines

the

waiver
the

defendant’s
2

marks
is

and

citation

knowing

totality
experience,

of

and
the

conduct,

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educational

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background,

agreement’s terms.
(4th Cir. 2002).

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and

familiarity

with

the

plea

United States v. General, 278 F.3d 389, 400
Generally, if a district court fully questions

a defendant regarding the appellate waiver during the Rule 11
colloquy,

the

waiver

is

both

valid

and

enforceable.

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

United
However,

this court will refuse to enforce an otherwise valid waiver if
enforcing the waiver would result in a miscarriage of justice.
Id.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Powell
knowingly and intelligently agreed to the waiver of appellate
rights as set forth in the plea agreement.

During the Rule 11

colloquy, the court reviewed the terms of the plea agreement,
including the waiver provision, with Powell, and Powell affirmed
that

he

response

understood
to

the

those

terms.

Government’s

Powell

motion

to

admits

dismiss,

this

in

his

and

did

not

contest the waiver in his Anders brief.
We next determine whether the issues Powell seeks to
raise on appeal fall within the scope of the appellate waiver.
Powell raises various allegations, including that the district
court

erred

in

denying

his

pretrial

motions

to

suppress

and

overruling his objection to the drug quantity calculation, and
that counsel forced him to lie about his guilt.
3

However, Powell

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waived the right to appeal his sentence or the manner in which
it was determined on any ground, so long as his sentence was
below or within the Guidelines range corresponding to an offense
level of twenty-six.
drug

quantity

Because Powell’s challenge regarding the

calculation

concerns

the

manner

in

which

his

sentence was determined, and because Powell was sentenced within
the

Guidelines

range

corresponding

to

an

offense

level

of

twenty-four, Powell’s challenge to the drug quantity calculation
falls

squarely

Accordingly,

within

the

grant

the

we

scope

of

the

Government’s

appellate
motion

to

waiver.
dismiss

Powell’s appeal of his sentence.
Powell’s challenge regarding his pretrial motions, and
the other claims in his pro se brief, concern his guilty plea
and not his sentence, and thus fall outside the scope of the
appellate waiver.

To the extent Powell claims his guilty plea

was involuntary, our review of the record compels the contrary
conclusion.
Powell

has

By
waived

knowingly
appellate

and

voluntarily

review

of

the

pleading

guilty,

remaining

claims.

United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993).
We also conclude that the record does not conclusively establish
that counsel was ineffective; accordingly, Powell’s ineffective
assistance claim is not cognizable on direct appeal.
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

4

United

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In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.

We

therefore affirm Powell’s conviction.
This
writing,

of

court

his

requires

right

to

that

petition

United States for further review.

counsel
the

inform

Supreme

Powell,

Court

of

in
the

If Powell requests that a

petition be filed, but counsel believes such petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation.

Counsel’s motion must state that a copy

thereof was served on Powell.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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