UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4806

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WESLEY DALLAS AYERS,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:18-cr-00389-HMH-1)

Submitted: March 25, 2021 Decided: April 5, 2021

Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed in part, affirmed in part by unpublished per curiam opinion.

William Glenn Yarborough, III, WILLIAM G. YARBOROUGH III, ATTORNEY AT LAW, LLC, Greenville, South Carolina, for Appellant. Leesa Washington, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Wesley Dallas Ayers pleaded guilty, pursuant to a written plea agreement, to using,

attempting to use, and threatening to use a weapon of mass destruction against a person

and property within the United States, in violation of 18 U.S.C. § 2332a; discharging a

firearm in furtherance of a crime of violence, in violation of

(c)(1)(A)(iii),

(c)(3)(A) (Count 2); and using an explosive to commit a felony and carrying an explosive

during the commission of a felony, in violation of

(h) (Count 3). The

district court sentenced Ayers to 361 months’ imprisonment. On appeal, Ayers challenges

the validity of his guilty plea, the Government’s compliance with the plea agreement, and

the reasonableness of his sentence. The Government has moved to dismiss Ayers’ appeal

based upon a waiver of appellate rights in the plea agreement. We affirm in part and

dismiss in part.

We conclude that the appeal waiver contained in Ayers’ plea agreement is valid, as

Ayers entered it knowingly and voluntarily. 1 See United States v. Tate,

, 574

n.1 (4th Cir. 2017). Ayers waived the right to appeal his convictions and sentence, with

certain exceptions not applicable here. Accordingly, we grant the Government’s motion

to dismiss in part and dismiss Ayers’ appeal as to two issues. Specifically, we dismiss

1 Ayers asserts that his appeal waiver is unenforceable because, inter alia, his trial counsel rendered ineffective assistance by withholding discovery from him. We conclude that trial counsel’s ineffectiveness does not “conclusively appear[] on the face of the record.” United States v. Faulls,

(4th Cir. 2016). Ayers thus may not avoid the application of the appeal waiver through his claim of ineffective assistance of counsel.

2 Ayers’ claims that his sentence is procedurally unreasonable because the district court

failed to adequately explain its chosen sentence and that his sentence is substantively

unreasonable because the district court failed to properly weigh the mitigating facts in this

case. We deny the motion to dismiss, however, as to Ayers’ remaining claims that his

guilty plea is not knowing and voluntary, that the Government breached the plea

agreement, and that his sentence is based on a constitutionally impermissible factor, that

is, his actual or perceived religion. See United States v. Johnson,

(4th

Cir. 2005) (recognizing that certain claims cannot be waived by plea agreement).

Although Ayers agreed to waive the right to appeal his convictions in his plea

agreement, a defendant cannot waive a colorable claim that his guilty plea is not knowing

and voluntary. United States v. Attar,

, 732-33 & n.2 (4th Cir. 1994).

Accordingly, Ayers’ appeal waiver does not foreclose our review of the validity of his

guilty plea. Because Ayers did not challenge the knowing and voluntary nature of his

guilty plea in the district court, we assess the issue for plain error. United States v. Sanya,

(4th Cir. 2014). We have reviewed the record and discern no plain error

in the district court’s finding that Ayers’ guilty plea is knowing and voluntary. We

therefore conclude that Ayers’ guilty plea is valid.

Next, Ayers asserts that the Government breached the plea agreement by failing to

object to the district court’s imposition of consecutive sentences on Count 2 and Count 3.

This issue is also not barred by the appeal waiver. See Tate,

. However,

because Ayers “did not challenge the [G]overnment’s purported breach of the plea

agreement before the district court,” we review his claim for plain error. United States v.

3 Edgell,

(4th Cir. 2019). “Under that standard, [Ayers] must show that

the [G]overnment plainly breached its plea agreement with him and that the breach both

affected his substantial rights and called into question the fairness, integrity, or public

reputation of judicial proceedings.”

. We are satisfied that the Government

did not breach the plea agreement, let alone plainly so. Nothing in the plea agreement

required the Government to object to the consecutive sentences. Moreover, Ayers has not

shown that the Government’s failure to object affected his substantial rights because—as

the plea agreement explains—the statutes prescribing the sentences for Count 2 and Count

3 require that the sentences for those offenses run consecutive to any other sentence. See

(h), 924(c)(1)(A)(iii).

Finally, Ayers contends that his sentence is both procedurally and substantively

unreasonable because the district court “strong[ly] focus[ed] on [Ayers’] alleged ties to

Islamic terrorism” during the sentencing hearing. (Appellant’s Br. (ECF No. 27) at 9).

Ayers thus asserts that his sentence is infected by animus against those who practice Islam,

in violation of his First and Fifth Amendment rights. The appeal waiver does not prevent

our review of this issue. See United States v. Thornsbury,

(4th Cir.

2012).

The Supreme Court has recognized that it is “constitutionally impermissible” for a

court to use a defendant’s religion against him at sentencing. Zant v. Stephens,

(1983); accord Deyton v. Keller,

(4th Cir. 2012) (“The

Supreme Court’s decision in Zant bars a sentencing judge from relying on the religion . . .

of the defendant in determining the appropriate term of imprisonment.” (internal quotation

4 marks omitted)); see also U.S. Sentencing Guidelines Manual § 5H1.10, p.s. (2018)

(providing that defendant’s religion is “not relevant in the determination of a sentence”).

We conclude that the district court did not contravene that principle when sentencing

Ayers. The district court’s mention of Ayers’ apparent interest in a fringe group of

terrorists who commit violent acts in the name of a particular religion was appropriate

given the nature and circumstances of Ayers’ offenses. 2 Importantly, the district court’s

comments do not remotely reflect bias against persons who practice that religion or against

Ayers in particular for perhaps practicing that religion. 3

For those reasons, we dismiss in part and affirm in part. 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.

DISMISSED IN PART, AFFIRMED IN PART

2 We reject Ayers’ contention that the district court erred by mentioning “Islamic terrorism” because “[t]here was no evidence presented in this case that [Ayers] had any ties to Islamic terrorist groups.” (Appellant’s Br. at 8-9). The district court had a basis for mentioning “Islamic terrorism”—that is, the Government produced evidence that Ayers included a picture and written statements referencing Islam with the explosive devices and hoax explosive devices that he constructed and planted throughout Anderson County, South Carolina. 3 We observe that, in his opening brief, Ayers denies having ever practiced Islam.

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