                             UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
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.


                                        2
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



                                          3
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 post-
      conviction 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

                                       4
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.

                                             5
                                                     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

                                                     6
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”

                                       7
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.

                                 8
       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).



                                                 9
       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

                                             10
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

                                            11
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.




                                         12
                              V.

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

part.

                                           AFFIRMED IN PART AND
                                              DISMISSED IN PART




                              13
