                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4679


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

RAPHAEL DAVONNE POWELL,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00328-F-1)


Submitted:    January 28, 2010              Decided:   February 18, 2010


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Raphael Davonne Powell pled guilty pursuant to a plea

agreement    to    one    count      of   conspiracy          to    commit   a   Hobbs    Act

robbery, in violation of 18 U.S.C. § 1951(b) (2006), and two

counts of possession of a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c) (2006).

Powell was sentenced to 73 months in prison on the Hobbs Act

count, 84 months on the first firearm charge, and 300 months on

the second charge, to be served consecutively.                          In this appeal,

Powell raises two claims challenging his sentence and one claim

challenging       the    effectiveness           of     his    trial    counsel.          The

Government      has     moved   to    dismiss         the   appeal.      The     motion    to

dismiss the sentencing claims is based on the appellate waiver;

the argument for dismissal of the ineffective counsel claim is

based on the fact that counsel’s ineffectiveness is not apparent

on the face of the record before us.                               For the reasons that

follow, the Government’s motion to dismiss will be granted in

part and denied in part, and Powell’s appeal will be dismissed

in part and affirmed in part.

            It is well-settled that “a defendant may waive in a

valid    plea     agreement     the       right       of    appeal     under     18   U.S.C.

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

1990).     “Whether a defendant has effectively waived the right to

appeal is an issue of law that we review de novo.”                                    United

                                             2
States   v.    Blick,       408     F.3d       162,     168    (4th        Cir.    2005).       In

undertaking that review, this court will enforce an appellate

waiver where such a waiver “is knowing and intelligent and the

issue sought to be appealed falls within the scope of the appeal

waiver.”        United      States        v.     Poindexter,         492        F.3d    263,    270

(4th Cir. 2007).           An appellate waiver is generally considered to

be   knowing      and       intelligent          where        the      court      specifically

questioned the defendant regarding the waiver during the Federal

Rule of Criminal Procedure 11 colloquy and the record indicates

that the defendant understood the significance of the waiver.

See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

              Further,      only     a     “narrow          class    of     claims       involves

errors     that      the      defendant              ‘could      not       have        reasonably

contemplated’        when     the        plea        agreement       was     executed,”         and

therefore      are        excluded        from        the     scope        of     the       waiver.

Poindexter, 492 F.3d at 270 (quoting Blick, 408 F.3d at 172).

Claims that proceedings following the guilty plea were conducted

in   violation       of     the     defendant’s             Sixth    Amendment          right    to

counsel, see United States v. Attar, 38 F.3d 727, 732-33 (4th

Cir. 1994), or that a sentence was imposed in excess of the

statutory      maximum       penalty       “or        based     on     a    constitutionally

impermissible        factor       such    as     race,”       United       States      v.    Marin,

961 F.2d 493, 496 (4th Cir. 1992), fall within the category of

claims excluded from an appellate waiver.

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               At Powell’s Rule 11 hearing, the Government stated in

open       court    all    terms    of   the       plea   agreement,   including   the

appellate waiver, 1 and Powell indicated that he understood all

aspects of the agreement.                The district court also raised the

issue of the appellate waiver numerous times with Powell, 2 and

Powell indicated his understanding of his right to appeal only

an upward departure from the advisory guidelines established at

sentencing.         Powell, a high school graduate, was represented by

counsel at the hearing, and the court determined that he was

competent          and     had     entered     the        agreement    knowingly   and

intelligently.            As the record demonstrates that Powell knowingly




       1
           Powell’s appellate waiver required him:

       To waive knowingly and expressly the right to appeal
       whatever sentence is imposed on any ground, including
       any appeal pursuant to 18 U.S.C. § 3742, reserving
       only the right to appeal from a sentence in excess of
       the advisory Guideline range that is established at
       sentencing, and further to waive all rights to contest
       the conviction or sentence in any post-conviction
       proceeding, including one pursuant to 28 U.S.C.
       § 2255, excepting the Defendant’s right to appeal
       based upon grounds of ineffective assistance of
       counsel and prosecutorial misconduct not known to the
       Defendant at the time of the Defendant’s guilty plea.
       2
       Powell claims in his response to the Government’s motion
to dismiss that the district court’s statements regarding his
“right to appeal” preclude application of the waiver. However,
the court did not make any statements that contradicted the
waiver, and in fact repeatedly reminded Powell that he had
waived his right to appeal except in very limited circumstances.



                                               4
and   voluntarily          agreed      to     the       appellate     waiver,       we    find    the

waiver valid and enforceable.

               Further, Powell does not allege and the record does

not reflect that his sentence exceeds the applicable Guidelines

range or the statutory maximum penalties, or that his sentence

was     based         on    a      constitutionally                 impermissible             factor.

Therefore, as his sentencing issues are within the scope of the

valid       waiver,    we    grant       in    part          the   Government’s          motion    to

dismiss the appeal, and dismiss the appeal of Powell’s sentence.

               Powell also alleges that he was deprived of his right

to    the    effective      assistance          of       counsel     following       his       guilty

plea,       asserting      that     his     trial         counsel     “fail[ed]          to   pursue

viable      objections       to    the      Presentence            Report    that    would       have

lowered Powell’s Guidelines sentencing range for the Hobbs Act

conspiracy charge.”             Because Powell’s appellate waiver expressly

reserved       his    right       to   appeal           on   the    ground    of     ineffective

assistance of counsel, this claim is not within the scope of the

appellate waiver, and we may not dismiss it on that ground.                                       The

Government’s motion to dismiss this unwaived claim constitutes,

in effect, a motion for summary disposition, which we reserve

for extraordinary circumstances not present here.                                   4th Cir. R.

27(f).       Therefore, we deny the Government’s motion to dismiss in

part, and proceed to address the ineffective assistance claim

raised by Powell.

                                                    5
             “A claim of ineffective assistance of counsel should

be raised by a habeas corpus motion under 28 U.S.C. § 2255 in

the    district      court       and     not        on     direct       appeal,       unless    it

conclusively appears from the record that defense counsel did

not    provide      effective          representation.”                     United    States     v.

Richardson,        195    F.3d     192,        198        (4th      Cir.      1999)     (internal

quotation marks and alterations omitted).                              Powell contends that

the   ineffective        assistance       provided             by     his    trial    counsel    is

apparent on the face of the record, and that any argument by the

Government that counsel may have had a strategic reason for not

raising the specific objections must be rejected.                                    However, the

appellate record contains no affidavit or response from trial

counsel indicating why he chose not to make the objections at

issue; therefore, any conclusion by this court regarding his

decision would be premised on surmise or speculation.                                   Thus, we

decline      on    direct    appeal        to            consider       Powell’s        arguments

regarding     his    trial       counsel’s           ineffective            assistance.         See

United States v. Allen, 491 F.3d 178, 191-92 (4th Cir. 2007).

             Accordingly,         we     grant           the     Government’s          motion    to

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

We    deny   the    motion   to        dismiss       in        part    and    affirm     Powell’s

conviction.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials



                                                6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                        AFFIRMED IN PART;
                                                        DISMISSED IN PART




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