UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5188

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL GEROD WESTBROOK,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Cameron McGowan Currie, District 

Judge. (3:09-cr-00714-CMC-2)

Submitted: December 13, 2010 Decided: January 21, 2011

Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia, 

South Carolina, for Appellant. James Chris Leventis, Jr., 

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Gerod Westbrook pled guilty, pursuant to a 

written plea agreement, to conspiracy to possess with intent to 

distribute cocaine and cocaine base (crack). The statutory 

mandatory minimum sentence applicable to Westbrook’s offense was 

240 months. The applicable guidelines range was 360 months to 

life imprisonment. The district court sentenced Westbrook to 

360 months’ imprisonment.

On appeal, Westbrook’s counsel has filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), stating 

that there are no viable grounds for appeal, but questioning 

whether Westbrook’s appeal waiver is valid and enforceable; 

whether the district court erred by denying Westbrook a 

reduction for acceptance of responsibility and Westbrook’s 

motion for a downward variance in sentence; whether the United 

States breached the plea agreement by not filing a motion for a 

reduction in sentence based on Westbrook’s substantial 

assistance; and whether claims that counsel below provided 

ineffective assistance may be raised on direct appeal. The 

Government has moved to dismiss the appeal based on Westbrook’s 

waiver of his right to appeal. Westbrook opposes the motion, 

noting that three of the five issues raised on appeal are not 

within the scope of the waiver. He asserts that claims of 

ineffective assistance of counsel and prosecutorial misconduct 
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are excepted from the appeal waiver, and therefore the appeal 

should not be dismissed as to the challenges to the Government’s 

potential breach of the plea agreement, counsel’s 

ineffectiveness, and the validity of the appeal waiver. 

Westbrook filed a supplemental pro se brief asserting that the 

Government breached the plea agreement, that the court erred in 

denying him the acceptance of responsibility reduction, and that 

the plea was unknowing and involuntary. We dismiss in part and 

affirm in part.

A defendant may waive the right to appeal if that 

waiver is knowing and intelligent. United States v. Poindexter, 

492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district 

court fully questions a defendant regarding the waiver of his 

right to appeal during the plea colloquy performed in accordance 

with Fed. R. Crim. P. 11, the waiver is both valid and 

enforceable. See United States v. Johnson, 410 F.3d 137, 151 

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 

(4th Cir. 1991). The question of whether a defendant validly 

waived his right to appeal is a question of law that this court 

reviews de novo. United States v. Blick, 408 F.3d 162, 168 (4th 

Cir. 2005).

Our review of the record leads us to conclude that 

Westbrook knowingly and voluntarily waived the right to appeal 

his sentence. He has therefore waived review by this court of 
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his challenge to the district court’s denial of a variance 

sentence and the denial of the reduction for acceptance of 

responsibility. We therefore grant the Government’s motion to 

dismiss in part and dismiss the appeal as to these issues and as 

to Westbrook’s sentence. Although Westbrook’s appeal waiver 

insulates his sentence from appellate review, the waiver does 

not preclude our consideration of the remaining claims raised by 

Westbrook and counsel, and does not prohibit our review of 

Westbrook’s conviction pursuant to Anders. Consequently, we 

deny the motion to dismiss in part.

Turning then, to the unwaived claims, because 

Westbrook did not move in the district court to withdraw his 

guilty plea, the adequacy of the Rule 11 hearing is reviewed for 

plain error. See United States v. Martinez, 277 F.3d 517, 525 

(4th Cir. 2002). Our review of the transcript of the plea 

hearing leads us to conclude that the district court fully 

complied with Rule 11 in accepting Westbrook’s guilty plea. The 

court ensured that Westbrook understood the charge against him 

and the potential sentence he faced; that he entered his plea 

knowingly and voluntarily; and that the plea was supported by an 

independent factual basis. See United States v. DeFusco, 949 

F.2d 114, 116, 119-20 (4th Cir. 1991). Accordingly, we discern 

no plain error in the district court’s acceptance of Westbrook’s 

guilty plea.
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Next, Westbrook and counsel argue that the Government 

breached the plea agreement by failing to move for a downward 

departure based on Westbrook’s cooperation with the authorities, 

which they contend amounted to substantial assistance. 

Westbrook has the burden of showing by a preponderance of the 

evidence that the Government breached the plea agreement. See

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). The 

determination of whether the defendant has provided substantial 

assistance is within the Government’s discretion. Id. at 190. 

The record in this case fails to show that Westbrook provided 

substantial assistance. Additionally, the plea agreement did 

not obligate the Government to move for such a departure, and 

there is no evidence that the Government refused to make such a 

motion based on any unconstitutional motive. See Wade v. United 

States, 504 U.S. 181, 185-86 (1992) (holding that defendant must 

make substantial threshold showing of improper motive to obtain 

review of Government’s decision not to move for substantial 

assistance departure). We find no breach of the plea agreement 

by the Government’s decision not to move for a downward 

departure. 

The final claim asserted on appeal is that Westbrook 

received ineffective assistance of counsel at the district court 

level. Claims of ineffective assistance of counsel are 

generally not cognizable on direct appeal. These claims are 
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more appropriately raised in a motion filed pursuant to 28 

U.S.C.A. § 2255 (West Supp. 2010), unless counsel’s 

ineffectiveness conclusively appears on the record. See United 

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); United 

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). After 

review of the record, we find no conclusive evidence that 

counsel rendered ineffective assistance, and we accordingly 

decline to consider these claims on direct appeal.

In accordance with Anders, we have reviewed the 

remainder of the record in this case and have found no 

meritorious issues not foreclosed by Westbrook’s appellate 

waiver. We therefore affirm Westbrook’s conviction and dismiss 

the appeal of his sentence. This court requires that counsel 

inform Westbrook, in writing, of the right to petition the 

Supreme Court of the United States for further review. If 

Westbrook 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 Westbrook. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 
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materials before the court and argument would not aid the 

decisional process.

DISMISSED IN PART;

AFFIRMED IN PART