United States v. Travis Alewine

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 3, 2024
• Docket: 23-4305
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4305

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TRAVIS ALEWINE, a/k/a Sticks,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, Chief District Judge. (1:16-cr-00453-GLR-1)

Submitted: May 30, 2024 Decided: June 3, 2024

Before GREGORY and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

ON BRIEF: Michael Wein, LAW OFFICES OF MICHAEL A. WEIN, LLC, Greenbelt, Maryland, for Appellant. Patricia Corwin McLane, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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PER CURIAM:

Travis Alewine pled guilty, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea

agreement, to conspiracy to participate in a racketeering enterprise, in violation of

18 U.S.C. § 1962(d). Alewine’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), questioning whether Alewine’s 253-month sentence is procedurally

reasonable. In a pro se supplemental brief, Alewine contends that he was coerced into

pleading guilty, his counsel provided ineffective assistance, and the district court erred in

calculating his criminal history score.

The Government has filed a motion to dismiss the appeal on the ground that

Alewine’s appeal is barred by the appeal waiver included in the plea agreement. We review

de novo the validity of an appeal waiver. United States v. Cohen, 888 F.3d 667, 678 (4th

Cir. 2018). Where, as here, the Government seeks to enforce the appeal waiver and has

not breached the plea agreement, we will enforce the waiver if it is valid and the issue being

appealed falls within the waiver’s scope. United States v. Manigan, 592 F.3d 621, 627 (4th

Cir. 2010).

A defendant validly waives his appeal rights if he agreed to the waiver “knowingly

and intelligently.” Id. To determine whether a waiver is knowing and intelligent, “we

consider the totality of the circumstances, including the experience and conduct of the

defendant, his educational background, and his knowledge of the plea agreement and its

terms.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal quotation

marks omitted). Generally, “if a district court questions a defendant regarding the waiver

of appellate rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that

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the defendant understood the full significance of the waiver, the waiver is valid.” Id.

(internal quotation marks omitted).

Upon review of the plea agreement and the transcript of the Rule 11 hearing, we

conclude that Alewine knowingly and voluntarily waived his right to appeal and that his

challenges to his sentence fall squarely within the scope of the appellate waiver. Although

Alewine’s claim that he was coerced into pleading guilty is not barred by the waiver, see

id. at 364, this claim is contradicted by his sworn statements at the Rule 11 hearing, see

United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (recognizing “strong

presumption of verity” applied to sworn declarations during plea colloquy, such that, “in

the absence of extraordinary circumstances, the truth of sworn statements made during a

Rule 11 colloquy is conclusively established” (internal quotation marks omitted)).

Similarly, while an ineffective assistance claim that implicates the validity of a guilty plea

is not barred by the waiver, such claims are generally not cognizable on direct appeal—

and instead must be reserved for a 28 U.S.C. § 2255 motion—unless the “attorney’s

ineffectiveness conclusively appears on the face of the record.” United States v. Faulls,

821 F.3d 502, 507-08 (4th Cir. 2016). The record here does not conclusively show that

counsel provided ineffective assistance.

Pursuant to Anders, we have reviewed the entire record and have found no

meritorious issues for appeal that fall outside the scope of the appeal waiver. We therefore

grant the Government’s motion to dismiss in part and dismiss the appeal as to all issues

within the waiver’s scope. We affirm the remainder of the district court’s judgment. This

court requires that counsel inform Alewine, in writing, of the right to petition the Supreme

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Court of the United States for further review. If Alewine 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 Alewine.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART, DISMISSED IN PART