UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4737

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

TYRONE EUGENE YATES, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:06-cr-00020-JPB-JES-1) 

Submitted: February 24, 2009 Decided: May 4, 2009 

Before KING and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Dismissed in part; affirmed in part by unpublished per curiam 

opinion. 

Brendan S. Leary, Assistant Federal Public Defender, Wheeling, 

West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant 

United States Attorney, Martinsburg, West Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Tyrone Eugene Yates appeals from his conviction and 

188-month sentence after pleading guilty pursuant to a plea 

agreement to possession with intent to distribute cocaine, in 

violation of 21 U.S.C. § 841(a)(1) (2006). Yates’ counsel filed 

an Anders brief, in which he states there are no meritorious 

issues for appeal, acknowledges that the district court complied 

with Fed. R. Crim. P. 11, and concedes that Yates’ plea was 

“knowing, intelligent and voluntary.” Yates filed a pro se 

supplemental brief challenging his career offender 

classification. 

 The Government has moved to dismiss the appeal based 

on the appellate waiver contained in Yates’ plea agreement. 

Yates’ counsel asserts that the Government’s motion is 

premature. Yates also opposes the Government’s motion in a pro 

se filing, essentially asserting that because he did not know he 

could be sentenced as a career offender, his plea was not 

knowing and voluntary. Yates also suggests that his counsel was 

ineffective for not arguing the invalidity of his sentence to 

this court, and for not securing an exception to his appellate 

waiver that would have allowed him to challenge his career 

offender classification on appeal. We grant the motion to 

dismiss in part, deny it in part, and affirm in part. 

2 
 A defendant may, in a valid plea agreement, waive the 

right to appeal under 18 U.S.C. § 3742 (2006). See United 

States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). We review 

the validity of an appellate waiver de novo, and will uphold a 

waiver of appellate rights if the waiver is valid and the issue 

being appealed is covered by the waiver. See United States v. 

Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of the 

record reveals that Yates knowingly and voluntarily waived his 

right to appeal his sentence. 

 We conclude, however, that Yates’ assertions that his 

guilty plea was involuntary and that he was denied effective 

assistance of counsel constitute exceptions to the appellate 

waiver because the issues either cannot be waived by appellate 

waiver or present “colorable” constitutional challenges. See, 

e.g., United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 

2005); United States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 

1994). Moreover, Yates’ appellate waiver does not preclude an 

appeal pertaining to his conviction. Accordingly, we deny the 

Government’s motion to dismiss as to any claims not foreclosed 

by the waiver. While we possess jurisdiction to consider the 

excepted claims, we nonetheless find that none warrant vacatur. 

 As previously stated, the record confirms that the 

district court conducted a thorough Rule 11 hearing, ensuring 

that Yates’ plea was knowing and voluntary in all respects. 

3 
Yates’ belated claim that he did not understand the consequences 

of his plea is simply belied by the record. In addition, Yates’ 

claim that he was denied effective assistance of counsel does 

not “conclusively appear” on the record and, accordingly, is not 

cognizable on direct appeal. Yates may assert this claim in an 

appropriate motion for postconviction relief. See United States 

v. Benton, 523 F.3d 424, 435 (4th Cir.) (citation omitted), 

cert. denied, 129 S. Ct. 490 (2008). 

 In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

Accordingly, we grant the Government’s motion to dismiss the 

appeal regarding Yates’ sentence, and deny the motion as to all 

remaining claims. We nonetheless affirm the district court’s 

judgment with regard to any claims not foreclosed by the waiver 

provision. 

 This court requires counsel to inform Yates, in 

writing, of his right to petition the Supreme Court of the 

United States for further review. If Yates 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 Yates. We dispense with 

oral argument because the facts and legal contentions are 

4 
5 

adequately presented in the materials before the court and 

argument would not aid the decisional process. 

 

DISMISSED IN PART;

AFFIRMED IN PART