UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4884

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRANCE MCCRAY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, District 

Judge. (3:13-cr-00046-JRS-1)

Submitted: May 22, 2014 Decided: May 28, 2014

Before TRAXLER, Chief Judge, and HAMILTON and DAVIS, Senior

Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam 

opinion.

Robert L. Flax, Richmond, Virginia, for Appellant. Dana J. 

Boente, Acting United States Attorney, Thomas K. Johnstone IV, 

Special Assistant United States Attorney, Richmond, Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Terrance McCray appeals from his conviction and 

twenty-four-month sentence after he pled guilty pursuant to a 

plea agreement to one count of conspiracy to commit bank fraud 

and mail theft, in violation of 18 U.S.C. §§ 371, 1344, 1708

(2012). McCray asserts that the criminal judgment against him 

should be vacated because he argues it was plain error for him 

to plead guilty with the misapprehension that his federal 

sentence would run concurrent to the state sentence he was then 

serving.1

 In response, the Government invokes the appellate 

waiver in McCray’s plea agreement, which provides that McCray 

waived his right to appeal his conviction and any sentence 

within the five-year stautory mandatory maximum applicable to 

his conviction. We affirm in part and dismiss in part.

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

right to appeal under 18 U.S.C. § 3742 (2012). United States v. 

Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the 

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

 1 Because counsel submitted an advocate’s brief on the 

merits, we decline counsel’s invitation to perform a review 

under Anders v. California, 386 U.S. 738 (1967), should we find 

his primary argument to be meritless. McCoy v. Court of Appeals 

of Wis., Dist. 1, 486 U.S. 429, 439 n.13 (1988) (“The Anders

requirement assures that indigent defendants have the benefit of

. . . a diligent and thorough review of the record and an 

identification of any arguable issues revealed by that 

review.”).
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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). 

An appellate waiver is valid if the defendant’s 

agreement to the waiver was knowing and intelligent. Id. at 

169. To determine whether a waiver is knowing and intelligent, 

we examine “the totality of the circumstances, including the 

experience and conduct of the accused, as well as the accused’s 

educational background and familiarity with the terms of the 

plea agreement.” United States v. General, 278 F.3d 389, 400 

(4th Cir. 2002) (internal quotation marks omitted). Generally, 

if a district court fully questions a defendant regarding the 

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

colloquy and the record indicates that the defendant understood 

the significance of the waiver and was not denied effective 

assistance of counsel, the waiver is valid. United States v. 

Johnson, 410 F.3d 137, 151 (4th Cir. 2005). The totality of the 

circumstances compels the conclusion that McCray knowingly and 

intelligently waived his right to appeal and, thus, his appeal 

is barred, at least in part, by the appellate waiver.

Despite the foregoing, McCray contends that he 

misunderstood that his federal sentence could be run consecutive 

to his state sentence, thereby rendering his guilty plea 

unknowing and involuntary. Although a defendant’s waiver of 
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appellate rights cannot foreclose a colorable constitutional 

challenge to the voluntariness of a guilty plea, see, e.g., 

United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 

1994), Rule 11 does not require that a district court inform a

defendant that a sentence may be imposed consecutive to another 

sentence. See General, 278 F.3d at 395. In fact, Rule 11

requires, in relevant part, that the court “inform the defendant 

of, and determine that the defendant understands, . . . any 

maximum possible penalty, including imprisonment, fine, and term 

of supervised release[.]” Fed. R. Crim. P. 11(b)(1)(H). The 

magistrate judge—to whose jurisdiction McCray consented—complied 

with this requirement. We nonetheless conclude that McCray’s 

plea agreement, the magistrate judge’s Rule 11 colloquy, and the 

assurances McCray made during that colloquy were sufficient to 

render his plea knowing and voluntary. 

Accordingly, to the extent McCray raises claims within 

the scope of the appellate waiver, we dismiss in part. We 

nonetheless affirm in part to the extent McCray raises claims 

not barred by the appellate waiver.2 We dispense with oral 

 2 Although McCray summarily asserts he received ineffective 

assistance of counsel, a claim not barred by the appellate 

waiver in his plea agreement, the record does not conclusively 

demonstrate that counsel was ineffective. See United States v. 

Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (“A defendant can 

raise the claim of ineffective assistance of counsel . . . on 

direct appeal if and only if it conclusively appears from the 

(Continued)
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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

 

record that his counsel did not provide effective 

assistance[.]”).