UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4146

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BASHIRI ALGBALA POWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (2:06-cr-00013-BO-1)

Submitted: October 20, 2008 Decided: November 6, 2008

Before KING, SHEDD, and AGEE, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam

opinion.

Slade C. Trabucco, SULLIVAN, TRABUCCO & WAGONER, LLP, Wilmington,

North Carolina, for Appellant. Anne Margaret Hayes, Assistant

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

In this appeal filed pursuant to Anders v. California,

386 U.S. 738 (1967), Bashiri Algbala Powell appeals his conviction

and the 240-month sentence he received upon pleading guilty to one

count of distributing fifty grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) (2000). In response, the

Government has filed a motion to dismiss, asserting the waiver of

appellate rights included in Powell’s plea agreement precludes

appeal of his sentence. Powell filed a pro se supplemental brief,

arguing the Government breached the plea agreement and that he

received ineffective assistance of counsel. For the reasons set

forth below, we affirm in part and grant the Government’s motion to

dismiss in part. 

We first conclude that Powell has waived his right to

appeal his sentence and its calculation. A defendant may, in a

valid plea agreement, waive the right to appeal under 18 U.S.C.

§ 3742 (2000). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990). We review the validity of an appellate waiver de novo, and

will enforce the waiver if it is valid and the issue appealed is

within the scope thereof. United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005). An appeal waiver is valid if the defendant

knowingly and intelligently agreed to the waiver. Id. at 169. “An

appeal waiver is not knowingly or voluntarily made if the district

court fails to specifically question the defendant concerning the
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waiver provision . . . during the [Fed. R. Crim. P.] 11 colloquy

and the record indicates that the defendant did not otherwise

understand the full significance of the waiver.” United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal quotation

marks omitted). Ultimately, however, the issue is “evaluated by

reference to the totality of the circumstances.” United States v.

General, 278 F.3d 389, 400 (4th Cir. 2002).

The appellate waiver set forth in Powell’s plea agreement

provided that Powell waived his right: 

[T]o appeal whatever sentence is imposed, including any

issues that relate to the establishment of the advisory

Guideline range, reserving only the right to appeal from

a sentence in excess of the applicable advisory Guideline

range that is established at sentencing, . . . excepting

an appeal . . . based upon grounds of ineffective

assistance of counsel or prosecutorial misconduct not

known to the Defendant at the time of the Defendant’s

guilty plea.

Our review of the record reveals that Powell knowingly and

voluntarily waived his right to appeal his sentence. The waiver’s

language is clear and unambiguous, and the district court reviewed

the terms of the waiver with Powell at the Fed. R. Crim. P. 11

hearing to ensure he understood it. Accordingly, we conclude the

waiver is valid and enforceable. 

In an attempt to avoid the impact of the appellate

waiver, Powell asserts the Government breached the plea agreement

by failing to advocate at sentencing for the drug quantity

stipulated to in the plea agreement. 
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A plea agreement is breached when a government promise

that induces the plea goes unfulfilled. Santobello v. New York,

404 U.S. 257, 262 (1971). “In interpreting plea agreements,” the

court is guided by contract law to ensure “each party receives the

benefit of the bargain.” United States v. Jordan, 509 F.3d 191,

195 (4th Cir. 2007). A criminal defendant asserting the Government

breached a plea agreement bears the burden of proving such a breach

by a preponderance of the evidence. United States v. Snow, 234

F.3d 187, 189 (4th Cir. 2000). Because Powell did not raise this

issue in the district court, this court reviews for plain error.

United States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th Cir. 1997).

In that situation, the appellant must show not only that the plea

agreement was breached, but also that “the breach was so obvious

and substantial that failure to notice and correct it affected the

fairness, integrity or public reputation of the judicial

proceedings.” Id. at 66 (internal quotation marks, alterations,

and citation omitted).

We have reviewed Powell’s claim, and find the

Government’s silence at sentencing does not amount to a breach of

the plea agreement. See United States v. Smith, 140 F.3d 1325,

1327 (10th Cir. 1998) (“The sentencing judge may exercise his

discretion at sentencing without transforming the prosecutor’s

silence into a breach of the [plea] agreement.”); see also United

States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001) (finding
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Government’s failure to verbally recommend particular sentence did

not amount to a breach of the plea agreement because recommendation

was included in the presentence report). 

Because the issues raised on appeal — a challenge to the

two-level enhancement for possession of a dangerous weapon and the

drug quantity attributable to Powell — fall within the scope of the

waiver that Powell knowingly and voluntarily accepted, the waiver

will be enforced to preclude review of Powell’s sentence.

Accordingly, we grant the Government’s motion to dismiss Powell’s

appeal to the extent that it challenges his sentence. 

Powell challenges his conviction by arguing his attorney

provided him ineffective assistance by assuring him the court would

rely upon the stipulated drug quantity in determining the drug

quantity attributable to Powell. Unless an attorney’s

ineffectiveness is conclusively apparent on the face of the record,

ineffective assistance claims are not generally addressed on direct

appeal. United States v. James, 337 F.3d 387, 391 (4th Cir. 2003);

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

(providing standard and noting that ineffective assistance of

counsel claims generally should be raised by motion under 28 U.S.C.

§ 2255 (2000)). The record in this case falls short of this

exacting standard. 

In accordance with Anders, we have reviewed the entirety

of the record and found no meritorious issues. The district court
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conducted a thorough Rule 11 hearing prior to accepting Powell’s

guilty plea. Accordingly, we grant the Government’s motion to

dismiss, in part, and dismiss Powell’s challenge to his sentence.

We deny, in part, the motion to dismiss and affirm the remainder of

the district court’s judgment. 

We require that counsel inform Powell, in writing, of the

right to petition the Supreme Court of the United States for

further review. If Powell 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 Powell. We dispense with oral argument because the

facts and legal contentions are adequately set forth in the

materials before the court and argument would not aid the

decisional process.

DISMISSED IN PART;

AFFIRMED IN PART