UNPUBLISHED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Affirmed in part; dismissed in part by unpublished per curiam 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Unpublished opinions are not binding precedent in this circuit.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 
7 

before the court and argument would not aid the decisional 

process. 

AFFIRMED IN PART;

DISMISSED IN PART