UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4400

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDREW DOUGLAS DALZELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:09-cr-00008-MR-1)

Argued: October 25, 2011 Decided: November 23, 2011

Before DAVIS, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam 

opinion.

ARGUED: Charles Robinson Brewer, Asheville, North Carolina, for 

Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES 

ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:

Anne M. Tompkins, United States Attorney, Charlotte, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Andrew Douglas Dalzell pled guilty, pursuant to a written 

plea agreement, to coercion and enticement, in violation of 18 

U.S.C. § 2422(b) (2006). The district court sentenced Dalzell to 

320 months in prison, and he filed a timely notice of appeal, 

challenging the reasonableness of his sentence and claiming 

ineffective assistance of counsel. The Government has sought 

dismissal of the appeal, asserting that Dalzell validly waived 

his right to appeal as a part of the plea agreement. We agree 

with the Government, and thus we affirm in part and dismiss in 

part.

I.

As the facts underlying Dalzell’s conviction are not 

relevant to the issues, we dispense with any description of his 

underlying conduct.

Dalzell’s plea agreement provided as follows, in part:

Defendant, in exchange for the concessions made by the 

United States in this plea agreement, waives all such 

rights to contest the conviction except for: (1) 

claims of ineffective assistance of counsel or (2) 

prosecutorial misconduct. Defendant also understands 

that 18 U.S.C. § 3742 affords a defendant the right to 

appeal the sentence imposed and Defendant knowingly 

and expressly waives all rights conferred by 18 U.S.C. 

§ 3742 or otherwise to appeal whatever sentence is 

imposed with the two exceptions set forth above.

J.A. 14. At his Rule 11 plea hearing, Dalzell stated that he had 

reviewed the indictment and the plea agreement with his lawyer. 
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The court identified the charge and set out the elements of the 

offense. Dalzell informed the court that he was pleading guilty 

to the offense and that he understood each element of the 

offense. The court identified the various trial rights that he

would waive; Dalzell informed the court that he understood. 

Dalzell stated that he was guilty and that his plea was 

voluntary and not the result of coercion, threats, or promises, 

other than those promises set out in the written plea agreement. 

The Assistant United States Attorney (“AUSA”) summarized 

the terms of the plea agreement, including the waiver of appeal 

provision, stating, “Finally, the defendant waives all rights to 

contest the conviction, except for, one, claims of ineffective 

assistance of counsel, and, two, prosecutorial misconduct.” Id.

at 34. Dalzell confirmed that he understood and agreed with the 

terms as the AUSA explained them. The court also specifically 

asked about the appeal waiver:

Have you discussed your right to appeal with [your

attorney], and do you understand that the plea 

agreement in this case provides that you may not 

appeal your conviction, or sentence or contest the 

same in a post-conviction proceeding unless it is on 

the grounds of, one, prosecutorial misconduct, or two, 

ineffective assistance of counsel?

Id. at 34-35. Dalzell confirmed his understanding of the waiver 

provision. The court followed up, “Do you knowingly and 

willingly accept these limitations on your right to appeal and 
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to file post-conviction proceedings?” Id. at 35. Dalzell again 

confirmed his understanding of the waiver provision. 

Thereafter, defense counsel confirmed that she had reviewed 

each section of the plea agreement terms with Dalzell and that 

she was satisfied that he understood those terms. Dalzell again 

confirmed that he understood the entire proceeding and that he 

wanted the court to accept his guilty plea. The court found that 

Dalzell’s plea was knowing and voluntary and that he understood 

the charges, potential penalties and consequences, and thus 

accepted the guilty plea. 

A written “Rule 11 Inquiry and Order of Acceptance of Plea” 

was completed, in which Dalzell answered “yes” in response to

the following inquiry: 

Have you discussed your right to appeal with your 

attorney, and do you understand the plea agreement in 

this case provides that you may not appeal your 

conviction or sentence or contest the same in a postconviction proceeding unless it is on the grounds of 

prosecutorial misconduct or ineffective assistance of 

counsel?

Id. at 45. 

II.

A.

Prior to sentencing, a presentence report (“PSR”) was 

prepared. Paragraphs 44 and 45 of the PSR documented Dalzell’s 

confession to a 1997 murder. Although Dalzell had been indicted 

for the murder, he had not been convicted of that offense; a
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North Carolina state trial judge had suppressed the confession, 

finding that the police had violated Dalzell’s Miranda rights 

and that the confession was involuntary. Consequently, Dalzell’s

PSR in the case at bar assigned no criminal history points for 

the murder charge. 

Defense counsel filed a sentencing memorandum, arguing that 

the paragraphs describing the suppressed confession should be 

stricken from the PSR and given no consideration by the district 

court because the confession was involuntary. The Government 

responded that information concerning the confession was 

properly included in the PSR because, contrary to the findings 

and conclusions of the state trial judge in the homicide 

prosecution, the confession was voluntary. The Government 

included the state court’s order of suppression as an attachment 

to its submission, and the Government asserted that it was 

content to have the district court rely on some of the state 

court’s findings of fact instead of relitigating the issue of 

the voluntariness of the confession in an evidentiary hearing. 

Although Dalzell’s counsel did not insist upon (or even request) 

an evidentiary hearing, she did make clear her objection to the 

district court’s consideration of the confession. 

In any event, as calculated in the final PSR, Dalzell’s 

total offense level was 37 and his criminal history category was 

II, yielding a sentencing range of 235 to 293 months. 
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B.

At the sentencing hearing, the court overruled Dalzell’s 

objection to the inclusion of paragraphs 44 and 45, related to 

the confession, and the court accepted the PSR as written, 

except for a provision not relevant here. The Government timely 

moved for an upward departure under U.S.S.G. § 4A1.3 or a 

variance based on an alleged inadequate criminal history score.

That is, the Government argued that the district court should 

factor into its sentencing calculus the unadjudicated murder

charge. 

The district court found, after hearing argument, that 

Dalzell’s criminal history score underrepresented his criminal 

history and that the confession could be considered under § 

4A1.3 because (contrary to the state court finding) it was 

voluntary and thus reliable. Accordingly, the court assigned 

three points to Dalzell’s criminal history score, i.e., the 

points he would have received had he been convicted of the 

murder. The court concluded that Dalzell’s final criminal 

history category was III, providing an advisory Guidelines range 

of 262 to 327 months. The court sentenced Dalzell to 320 months. 

As mentioned, no sworn testimony was taken from Dalzell or 

anyone else at sentencing. A transcript of the evidentiary 

hearing before the state court was offered to the district court 

by Dalzell, but the parties agree that the district court did 
7

not review the transcript before it imposed the sentence. The 

district court adopted some of the state court’s findings of 

fact, those proposed by the Government, and made an independent 

determination that the confession was voluntary. J.A. 110-15, 

146. 

III.

In challenging his sentence as procedurally unreasonable, 

Dalzell asserts on appeal that the district court erred in 

relying on his murder confession and in assessing three 

additional criminal history points as a result, and that the 

error falls outside the scope of his waiver. We disagree.

The issue of whether a defendant has validly waived his 

right to appeal in a plea agreement is a matter of law this 

court reviews de novo. United States v. Manigan, 592 F.3d 621, 

626 (4th Cir. 2010). A defendant is precluded from raising an 

issue on appeal if there is a valid waiver and the issue is 

within the scope of the waiver. United States v. Blick, 408 F.3d 

162, 168 (4th Cir. 2005).

A defendant may effectively waive his appellate rights if 

the waiver is knowing and intelligent. Manigan, 592 F.3d at 627. 

In making this determination, we examine the totality of the 

circumstances, including the defendant’s experience, conduct, 

educational background, and familiarity with the terms of the 

plea agreement, as well as whether the waiver is “unambiguous” 
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and “plainly embodied” in the plea agreement and whether the 

district court sufficiently explained the waiver during the Rule 

11 colloquy. United States v. General, 278 F.3d 389, 400-01 (4th 

Cir. 2002); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 

1992).

Here, Dalzell knowingly and voluntarily waived his right to 

appeal his sentence. Dalzell was thirty-two years old and had 

completed his G.E.D. The waiver provision was clearly set forth 

in a separate paragraph of the plea agreement, which Dalzell

signed. At the plea colloquy, the AUSA set out the terms of the 

waiver, and the court specifically inquired into the waiver. 

Dalzell stated that he understood the terms of the agreement. 

On its face, Dalzell’s challenge to the district court’s 

consideration of the murder confession falls within the scope of 

his appellate waiver. The plain language of the waiver covers 

“all rights conferred by 18 U.S.C. § 3742 or otherwise to appeal 

whatever sentence is imposed.” J.A. 14. The waiver expressly 

excludes only claims of ineffective assistance of counsel and 

prosecutorial misconduct. Dalzell’s contention that the 

ineffective assistance of counsel reservation supports his right 

to appeal here, particularly because the district court 

addressed the issue at sentencing, Appellant’s Br. at 25-26, is 

unpersuasive. His sentencing challenge is independent from his 

claim of ineffective assistance of counsel.
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Moreover, even if we were to consider the contention

Dalzell raises in his reply brief, see Edwards v. City of 

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (concluding 

that a claim not properly raised in an appellant’s opening brief 

is abandoned), that the prosecutor’s argument that the 

constitutionally defective confession should be included in the 

PSR and form the basis of an enhanced sentence constitutes 

prosecutorial misconduct, Appellant’s Reply Br. at 14-15, we are

unpersuaded. The record fails to show that the prosecutor’s 

remarks and conduct were improper and “prejudiced the defendant 

to such an extent as to deprive the defendant of a fair 

[sentencing determination].” United States v. Allen, 491 F.3d 

178, 191 (4th Cir. 2007). Indeed, Dalzell agreed as a part of 

the plea agreement that either party may seek a departure, 

precluding him from arguing that doing so constitutes 

misconduct. Nor does Dalzell’s challenge fall within the narrow 

class of cases we have recognized as outside the scope of 

appellate waivers: challenges to a sentence based on a 

constitutionally impermissible factor such as race or imposed in 

excess of the statutory maximum, or “on the ground that the 

proceedings following entry of the guilty plea were conducted in 

violation of his Sixth Amendment right to counsel.” United 

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
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We have held that state court rulings on motions to 

suppress evidence ordinarily do not bind federal prosecutors, 

United States v. Safari, 849 F.2d 891, 893 (4th Cir.), cert. 

denied, 488 U.S. 945 (1988) (citing with approval United States 

v. Mejias, 552 F.2d 435 (2d Cir.), cert. denied, 434 U.S. 847 

(1977)), and there is nothing in the record before us to take 

this case out of the category of “ordinary.” To be sure, 

particularly with respect to challenged confessions, the better 

practice in such circumstances is for the district court to 

conduct an evidentiary hearing in the subsequent federal 

prosecution, and then to set out clear findings and conclusions 

supporting its basis for reaching a legal conclusion on the 

reliability of the confession, particularly when, as here, the 

federal district court’s conclusion is directly contrary to that 

of the state court.

Thus, caution must be the watchword. Although a sentencing 

court may consider relevant information without regard to its 

admissibility under the Federal Rules of Evidence, provided the 

evidence has “sufficient indicia of reliability to support its 

probable accuracy,” U.S.S.G. § 6A1.3(a), p.s., there are 

constitutional limitations on the scope of information a court 

may consider. We have emphasized that Supreme Court precedents

“recognize a due process right to be sentenced only on 

information which is accurate.” United States v. Lee, 540 F.2d 
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1205, 1211 (4th Cir. 1976) (citing United States v. Tucker, 404 

U.S. 443 (1972); William v. New York, 337 U.S. 241 (1949); 

Townsend v. Burke, 334 U.S. 736 (1948)); see also Roberts v. 

United States, 445 U.S. 552, 556 (1980) (“We have . . . 

sustained due process objections to sentences imposed on the 

basis of ‘misinformation of constitutional magnitude.’”); United 

States v. Williams, 668 F.2d 1064, 1072 (9th Cir. 1981) (“Where 

. . . the trial judge relies on materially false or unreliable 

information, there is a violation of defendant’s due process 

rights.”). Indeed, in United States v. Nichols, 438 F.3d 437 

(4th Cir. 2006), we suggested that where law enforcement has 

coerced statements or where statements are otherwise 

involuntary, the statements may be so unreliable as to preclude 

their consideration at sentencing. 438 F.3d at 443-44 (“[W]e 

conclude that in cases such as this one--where there is no 

evidence that an illegally obtained statement was actually 

coerced or otherwise involuntary--the substantial burden on the 

sentencing process resulting from exclusion of that statement 

outweighs any countervailing concerns about police deterrence or 

unreliable evidence.”). Thus, where a district court has 

depended upon unreliable, coerced or otherwise involuntary,

statements, there may lurk a constitutional issue beyond the 

scope of an appellate waiver. Reliance on an allegedly

unreliable confession does not, however, fall within the 
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previously recognized issues that fall outside the scope of an 

appellate waiver, and we decline to adopt a new exception here. 

Dalzell’s challenge to the district court’s procedural 

decisions in determining whether the confession was reliable--

i.e., not holding an independent evidentiary hearing in the 

absence of a request, not considering the transcript from the 

underlying state court suppression hearing, and adopting some, 

but not all, of the state court’s factual findings--appears to 

have some bite. Nevertheless, our careful review of the record, 

informed by the cogency of counsels’ presentations at oral 

argument, satisfies us that the issue presented on appeal is 

foreclosed by Dalzell’s valid appeal waiver.

IV.

Dalzell also contends that defense counsel was ineffective. 

Unless counsel’s ineffectiveness conclusively appears on the 

face of the record, this issue should be raised, if at all, in a 

28 U.S.C.A. § 2255 (West Supp. 2010) motion. United States v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Because we find 

no conclusive evidence of ineffectiveness on the face of the 

record, we decline to address the merits of this claim. 
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V.

For the reasons set forth, we affirm in part and dismiss in 

part. 

AFFIRMED IN PART AND

DISMISSED IN PART