United States of America v. Chiaretta Joan Owle

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHIARETTA JOAN OWLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00021-LHT-1)
Submitted: August 12, 2010 Decided: September 8, 2010
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Rich Cassady, WILLIAMS & CASSADY, PLLC, Sylva, North Carolina,
for Appellant. Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Chiaretta Joan Owle pled guilty to one count of
robbery within the territorial jurisdiction of the United States
and aiding and abetting the same, in violation of 18 U.S.C.
§§ 2111, 1153, 2 (2006). The charges were based on Owle’s
participation in the armed robbery and beating of Bryan Shell.
Owle timely appealed. On appeal, Owle asserts that the district
court committed plain error in adopting ¶¶ 18 and 21 of the
presentence report (PSR), pertaining to the use of a firearm
during the offense and her role in the offense. Additionally,
Owle asserts a claim of ineffective assistance of counsel based
on trial counsel’s failure to object to the alleged errors in
the PSR or otherwise preserve the issues for appeal. In its
response brief, the Government argues that in light of the
appellate waiver provision of Owle’s plea agreement, this court
should dismiss the appeal.
The purpose of the Rule 11 colloquy is to ensure that
the defendant enters a plea of guilty knowingly and voluntarily.
See United States v. Vonn, 535 U.S. 55, 58 (2002). Prior to
accepting a guilty plea, a trial court must inform the defendant
of, and determine that she understands, the nature of the
charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty she faces, and the various
rights she is relinquishing by pleading guilty. Fed. R. Crim.

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P. 11(b). The court also must determine whether there is a
factual basis for the plea. Id.; United States v. DeFusco, 949
F.2d 114, 120 (4th Cir. 1991).
Pursuant to a plea agreement, a defendant may waive
her rights to appeal under 18 U.S.C. § 3742 (2006) as long as
that waiver is knowing and intelligent. United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). To determine
whether a waiver is knowing and intelligent, we examine “the
totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks and citation omitted).
Generally, if the district court fully questioned a defendant
regarding the waiver of her right to appeal during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Owle does not contend that there were any defects in
the Rule 11 colloquy or the district court’s acceptance of her
guilty plea. Moreover, the language in the plea agreement
setting forth the appellate waiver is clear and unambiguous. In
conducting the Rule 11 proceeding, the magistrate judge made
specific note of Owle’s appellate waiver. Trial counsel also
verified that he spoke with Owle concerning the waiver and that

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he was satisfied that she understood its terms. We accordingly
conclude the appellate waiver is valid and enforceable. United
States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005). Thus, with
the exception of Owle’s claim of ineffective assistance of
counsel, which is specifically exempted from the scope of the
appellate waiver, we dismiss the appeal based on the appeal
waiver in the plea agreement.
Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance of counsel.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). To
allow for adequate development of the record, ineffective
assistance of counsel claims ordinarily should be pursued in a
28 U.S.C. § 2255 (2006) motion. United States v. Hoyle, 33 F.3d
415, 418 (4th Cir. 1994). Because the record before this court
does not conclusively establish ineffective assistance of
counsel, that claim is not yet ripe for consideration, and we
decline to consider that portion of the appeal.
Accordingly, for the reasons stated, we affirm as to
Owle’s claim of ineffective assistance of counsel and dismiss
the remaining issues raised on appeal We dispense with oral
argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART

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