UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-5044

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHARLES W. PENLAND, SR.,

Defendant - Appellant.

No. 07-4201

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHARLES W. PENLAND, SR.,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:05-cr-00710)

Submitted: September 17, 2007 Decided: October 15, 2007

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion.

Charles W. Penland, Sr., Appellant Pro Se. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

- 2 - PER CURIAM:

In these consolidated appeals, Charles Penland, Sr.,

appeals the criminal judgment (No. 06-5044) and forfeiture order

(No. 07-4201) the district court imposed followed his guilty plea

to conspiracy to distribute cocaine and methamphetamine, in

violation of

, 846 (2000), and other offenses

stemming from Penland’s involvement in the underlying conspiracy to

distribute narcotics. Pursuant to the terms of the plea agreement,

the district court imposed a substantial forfeiture order and a

120-month sentence. Penland timely appealed. In response, the

Government has moved to dismiss the appeal on the basis of the

waiver of appellate rights contained in Penland’s plea agreement.

Penland, who proceeds on appeal pro se, subsequently filed an

informal brief, challenging his sentence and the forfeiture order,1

and arguing his attorney was ineffective. Both the Government’s

motion and Penland’s appeal are now ripe for adjudication. For the

reasons set forth below, we grant the Government’s motion to

dismiss in part, deny it in part, and affirm in part.

We first conclude that Penland has waived his right to

appeal either his sentence or the forfeiture order. A defendant

may, in a valid plea agreement, waive the right to appeal under 18

1 Penland’s challenges to his sentence include his claims that the district court failed to address Penland’s objections to his presentence report and that the district court improperly imposed a term of supervised release.

- 3 - U.S.C. § 3742 (2000). United States v. Wiggins,

(4th Cir. 1990). Any such waiver must be made by a knowing and

intelligent decision to forgo the right to appeal. United States

v. Broughton-Jones,

(4th Cir. 1995). Whether a

defendant has effectively waived his right to appeal is an issue of

law this court reviews de novo. United States v. Marin,

(4th Cir. 1992). We will uphold a waiver of appellate

rights if the waiver is valid and the issue being appealed is

covered by the waiver. United States v. Blick,

(4th Cir. 2005).

To determine whether a waiver is knowing and intelligent, this

court examines the background, experience, and conduct of the

defendant. Broughton-Jones,

. Generally, if the

district court fully questions a defendant regarding the waiver of

his right to appeal during the Fed. R. Crim. P. 11 plea colloquy,

the waiver is both valid and enforceable. United States v.

Wessells,

(4th Cir. 1991); Wiggins,

. Ultimately, however, the issue is “evaluated by

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

General,

(4th Cir. 2002).

The appellate waiver set forth in Penland’s plea

agreement provided that Penland waived his right “to contest either

the conviction or the sentence in any direct appeal or other post-

conviction action.” Penland also waived the right to challenge the

- 4 - forfeiture: “The Defendant agrees to waive all constitutional and

statutory challenges in any manner (including direct appeal, habeas

corpus, or any other means) to any forfeiture.” Because our review

of the record reveals that Penland knowingly and voluntarily waived

his right to appeal his sentence and the forfeiture order, we grant

the Government’s motion to dismiss Penland’s appeal to the extent

that it challenges those issues.2

Not all of Penland’s claims are barred from review; the

appellate waiver specifically exempted challenges predicated on

claims of ineffective assistance of counsel or prosecutorial

misconduct. Accordingly, we deny the motion to dismiss as to

Penland’s ineffective assistance claim. Ineffective assistance of

counsel claims, however, are not generally cognizable on direct

appeal unless counsel’s ineffectiveness “conclusively appears” on

the face of the record. United States v. James,

(4th Cir. 2003); United States v. Richardson,

(4th Cir. 1999) (providing standard and noting that ineffective

assistance of counsel claims generally should be raised by motion

under

(2000)). In his informal brief, Penland

asserts, in conclusory manner, that his attorney was ineffective

2 Penland attempts to end-run this result by couching his challenge to the forfeiture order in terms of an alleged breach of the plea agreement on the part of the Government. However, upon closer review of this claim, we conclude that, despite being framed as such, Penland is challenging the sum and substance of the forfeiture order, an issue that falls squarely within the scope of the appellate waiver.

- 5 - for failing to challenge the presentence report prepared by the

probation officer, for failing to file motions, and for failing to

properly argue the motions that were filed. Penland provides no

further details regarding any of these claims. We reject the

claims as legally insufficient because the record does not

conclusively establish that Penland’s attorney was ineffective.

In sum, we grant the Government’s motion to dismiss

Penland’s appeal of his sentence and the forfeiture order, deny the

Government’s motion to dismiss Penland’s claim that his trial

attorney provided ineffective assistance, and affirm as to that

claim.3 We further deny Penland’s pending motions to dismiss a

separate civil case in which he is a defendant, for summary

judgment, to add Penland’s wife, Mary Penland, as a party to the

present appeals, for the return of seized assets, and for an

injunction preventing his former counsel from discussing the case.

We also deny Penland’s several motions for additional time to find

new counsel, as one prior extension had been granted, and the

pending motions were all filed well after the extended period had

3 We have considered the issues raised in Penland’s informal brief as well as in the multiple supplements Penland has filed, and conclude that none of these issues warrants relief.

- 6 - expired. 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

- 7 -