UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4048

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DONALD TERRELL WASHINGTON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. W. Craig Broadwater,

District Judge. (3:06-cr-00022-WCB)

Submitted: October 29, 2007 Decided: November 15, 2007

Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Robert E. Barrat, Martinsburg, West Virginia, for Appellant.

Sharon L. Potter, United States Attorney, Thomas O. Mucklow,

Assistant United States Attorney, Martinsburg, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

On May 16, 2006, Donald T. Washington was charged with

possession with intent to distribute approximately 1.33 grams of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).

Washington entered a plea agreement with the United States, and on

August 21, 2006, Washington pled guilty to possession with intent

to distribute cocaine base. Washington’s plea agreement contained

a waiver of appellate rights. 

Prior to Washington’s sentencing, the probation office

compiled a presentence report and calculated an advisory guidelines

range of 151-188 months’ of imprisonment. At sentencing, the

district court imposed a sentence of 156 months’ imprisonment. 

On appeal, Washington has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), in which he questions

whether he should have been determined to be a career offender and

whether his sentence is too long. Washington has also filed a pro

se supplemental brief. In his pro se brief, Washington alleges

four separate errors: (1) use of his prior convictions to enhance

the applicable statutory range violated his Sixth Amendment right

to a jury trial; (2) he was deprived of competent counsel; (3) his

career offender status overrepresents the seriousness of his

criminal history and likelihood of recidivism; and (4) the factors

in 18 U.S.C. § 3553(a) (2000) support a significantly lower

sentence than that recommended by his advisory guidelines range.
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In response, the Government has filed a brief invoking the waiver

of appellate rights in Washington’s plea agreement. 

This Court reviews the validity of a waiver de novo,

United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will

uphold a waiver of appellate rights if the waiver is valid and the

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

Blick, 408 F.3d 162, 168 (4th Cir. 2005). A waiver is valid if the

defendant’s agreement to the waiver was knowing and voluntary.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United

States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). Generally,

if a district court fully questions a defendant regarding his

waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy,

the waiver is valid. Wessells, 936 F.2d at 167-68. 

Here, according to the terms of his plea agreement,

Washington waived the right to appeal any sentence within the

maximum provided in the statute of conviction or the manner in

which that sentence was determined on any ground whatever,

including those grounds set forth in Title 18, United States Code,

Section 3742. Washington’s sentence of 156 months is within the

statutory maximum of twenty years. 21 U.S.C.A. § 841(c) (West 2000

and Supp. 2007). Notably, Washington does not attack the validity

of his plea agreement or waiver of appellate rights. At

Washington’s Rule 11 hearing, the district court conducted a

thorough colloquy with Washington and specifically questioned him
*To the extent that Washington claims he received ineffective

assistance of counsel, his claim is not cognizable on direct

appeal. See United States v. Gastiaburo, 16 F.3 582, 590 (4th Cir.

1994). Rather, it must be pursued in an appropriate postconviction proceeding brought pursuant to 28 U.S.C. § 2255 (2000).

Accordingly, Washington’s ineffective assistance of counsel claim

must likewise be dismissed. 

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about whether he understood he was waiving his right to appeal.

The district court properly concluded that Washington’s plea was

freely and voluntarily made and accepted Washington’s plea. As

Washington knowingly and voluntarily waived his right to appeal and

as his sentencing claims fall squarely within the terms of his

appellate waiver, we dismiss Washington’s appeal.*

In accordance with Anders, we have reviewed the record in

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

therefore dismiss Washington’s appeal. This court requires that

counsel inform Washington, in writing, of the right to petition the

Supreme Court of the United States for further review. If

Washington 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 Washington.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

DISMISSED