UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4917

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICKY SHERELLE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Robert G. Doumar, Senior 

District Judge. (2:10-cr-00155-RGD-FBS-1)

Submitted: May 4, 2012 Decided: May 10, 2012

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam 

opinion.

Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for 

Appellant. Cameron Rountree, Special Assistant United States 

Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Ricky Sherelle Johnson pled guilty, pursuant to a 

written plea agreement, to possession of a firearm in 

furtherance of a drug trafficking crime, in violation of 18 

U.S.C. § 924(c)(1)(A) (2006). The district court sentenced 

Johnson to 262 months’ imprisonment. On appeal, Johnson argues 

that his trial counsel was constitutionally ineffective for 

advising him to enter into a plea agreement without explaining 

that he could be subject to an enhanced sentence as a career 

offender and failing to file an appeal as he requested. In 

addition, Johnson argues that the district court erroneously 

sentenced him as a career offender. 

The Government seeks to enforce the appellate waiver 

provision of the plea agreement and has moved to dismiss 

Johnson’s appeal.∗

 In response, Johnson asserts that the 

appellate waiver is unenforceable because his counsel provided 

ineffective assistance and maintained a conflict of interest in 

advising Johnson to enter into a plea agreement with the 

Government. 

 ∗ The Government also notes that Johnson’s pro se notice of 

appeal is untimely, as it was filed on September 6, 2011, more 

than three months after judgment was entered on May 16, 2011. 

However, the Government waives the untimeliness of Johnson’s 

appeal, seeking dismissal solely based upon Johnson’s appellate 

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

right to appeal under 18 U.S.C. § 3742 (2006). United States v. 

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). An appellate waiver 

must be “the result of a knowing and intelligent decision to 

forgo the right to appeal.” United States v. Broughton-Jones, 

71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and 

citation omitted). We review de novo whether a defendant has 

effectively waived his right to appeal. United States v. Marin, 

961 F.2d 493, 496 (4th Cir. 1992). 

To determine whether a waiver is knowing and 

intelligent, this court examines “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 and citation omitted). Generally, if a court 

fully questions a defendant regarding the waiver of his right to 

appeal during the Rule 11 colloquy, the waiver is both valid and 

enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th 

Cir. 2005). However, this court will “refuse to enforce an 

otherwise valid waiver if to do so would result in a miscarriage 

of justice.” Id. (internal quotation marks and citation 

omitted). 
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The language of the waiver provision is clear and 

unambiguous, setting forth a broad waiver of appellate rights; 

Johnson agreed to waive the right to appeal “the conviction and 

any sentence within the statutory maximum” on “any ground 

whatsoever.” The court questioned Johnson regarding the waiver 

provision numerous times during the Fed. R. Crim. P. 11 

colloquy. Johnson, thirty-one-years-old with a GED, indicated 

that he had reviewed the waiver provision and understood its 

terms. In addition, the court advised Johnson that he would not 

be able to withdraw his guilty plea if his attorney’s 

predictions regarding his Guidelines range proved inaccurate, 

emphasized that Johnson’s Guidelines range could not be 

determined until the presentence report was prepared, and 

cautioned that Johnson’s criminal history would be an important 

factor in determining his Guidelines range. We therefore 

conclude that Johnson knowingly and intelligently waived his 

right to appeal his conviction and sentence. As the district 

court imposed a sentence within the statutory maximum, Johnson’s 

challenge to his sentence falls within the scope of the waiver 

and may not be reviewed by this court. 

Johnson also asserts that his trial counsel provided 

ineffective assistance by failing to explain that he could be 

subject to an enhanced sentence as a career offender based upon 

his criminal history and failing to file a direct appeal. This 
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court is not precluded from considering claims of ineffective 

assistance of counsel by the waiver provision, and we deny the 

motion to dismiss as to these claims. However, claims of 

ineffective assistance of counsel should be raised in a 28 

U.S.C.A. § 2255 (West Supp. 2010) motion rather than on direct 

appeal, unless the appellate record conclusively demonstrates 

ineffective assistance. United States v. Benton, 523 F.3d 424, 

435 (4th Cir. 2008). Because the record here does not establish 

that counsel was constitutionally ineffective, these claims are 

not subject to review on direct appeal. 

Accordingly, we grant the Government’s motion to 

dismiss in part and deny it in part. We dismiss the appeal of 

Johnson’s sentence and otherwise affirm the judgment of the 

district court. 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. 

AFFIRMED IN PART;

DISMISSED IN PART