USCA4 Appeal: 23-4372 Doc: 39 Filed: 02/27/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4372

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LYCURTIS THOMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:22-cr-00036-D-RJ-1)

Submitted: February 22, 2024 Decided: February 27, 2024

Before NIEMEYER and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4372 Doc: 39 Filed: 02/27/2024 Pg: 2 of 4

PER CURIAM:

Lycurtis Thompson pled guilty, pursuant to a written plea agreement, to possession

of a firearm by a convicted felon, in violation of

(g)(1), 924(a)(2). The

district court sentenced him to 71 months’ imprisonment. On appeal, counsel has filed a

brief pursuant to Anders v. California,

(1967), stating that there are no

meritorious grounds for appeal but questioning whether (1) Thompson’s appeal waiver is

enforceable; (2) Thompson’s guilty plea was valid; (3) trial counsel rendered ineffective

assistance; (4) the district court properly applied the Sentencing Guidelines; and (5) the

prosecutor engaged in misconduct. In a pro se supplemental brief, Thompson details the

circumstances of his trial counsel’s alleged ineffectiveness. The Government moves to

dismiss Thompson’s appeal pursuant to the appellate waiver in his plea agreement. We

affirm in part and dismiss in part.

“We review an appellate waiver de novo to determine whether the waiver is

enforceable” and “will enforce the waiver if it is valid and if the issue[s] being appealed

fall[] within the scope of the waiver.” United States v. Boutcher,

, 608 (4th

Cir. 2021) (internal quotation marks omitted). An appellate waiver is valid if the defendant

enters it “knowingly and intelligently, a determination that we make by considering the

totality of the circumstances.”

“Generally though, 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 the defendant understood the full significance of the waiver,

the waiver is valid.” United States v. McCoy,

(4th Cir. 2018) (internal

quotation marks omitted).

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Our review of the record, including the plea agreement and the transcript of the Rule

11 hearing, confirms that Thompson knowingly and intelligently waived his right to appeal

his conviction and sentence, excepting claims of ineffective assistance of counsel and

prosecutorial misconduct. We therefore conclude that the waiver is valid and enforceable

and that the sentencing issues raises by Anders counsel fall squarely within the waiver’s

scope.

The waiver provision, however, does not preclude our review pursuant to Anders of

the validity of the guilty plea. See

. Because Thompson did not seek to withdraw

his guilty plea, we review the adequacy of the Rule 11 hearing for plain error. United

States v. Williams,

(4th Cir. 2016); see United States v. Harris,

(4th Cir. 2018) (discussing plain error standard). Our review of the record leads

us to conclude that Thompson entered his guilty plea knowingly and voluntarily, that a

factual basis supported the plea and all elements of his offense, and that his guilty plea is

valid. See United States v. DeFusco,

(4th Cir. 1991).

Thompson’s ineffective assistance and prosecutorial misconduct claims also fall

outside the scope of the appeal waiver. There is no evidence in the record to support

Thompson’s conclusory claim of prosecutorial misconduct. To demonstrate ineffective

assistance of trial counsel, Thompson “must show that counsel’s performance was

[constitutionally] deficient” and “that the deficient performance prejudiced the defense.”

Strickland v. Washington,

(1984). However, “[u]nless an attorney’s

ineffectiveness conclusively appears on the face of the record, [ineffective assistance]

claims are not addressed on direct appeal.” United States v. Faulls,

, 507-08

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(4th Cir. 2016). Instead, such claims should be raised, if at all, in a motion brought pursuant

to

in order to permit sufficient development of the record. United States

v. Baptiste,

, 216 n.1 (4th Cir. 2010). We conclude that ineffectiveness of

counsel does not conclusively appear on the face of the record before us.

In accordance with Anders, we have reviewed the entire record in this case and have

found no potentially meritorious grounds for appeal outside the scope of Thompson’s valid

appellate waiver. We therefore grant the Government’s motion to dismiss in part and

dismiss the appeal as to all issues covered by the waiver. We deny the motion in part and

otherwise affirm.

This court requires that counsel inform Thompson, in writing, of the right to petition

the Supreme Court of the United States for further review. If Thompson 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 Thompson. 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

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