United States of America v. Timothy Lee Scaife, a/k/a Timothy John Scaife

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY LEE SCAIFE, a/k/a Timothy John Scaife,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00376-REP-1)
Submitted: December 7, 2010 Decided: January 5, 2011
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Richard Daniel
Cooke, Norval George Metcalf, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Timothy Lee Scaife pled guilty to one count of
distribution of cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(B)(iii) (West 1999 & Supp. 2010). The
district court sentenced Scaife to 235 months’ imprisonment.
Scaife asserts four issues on appeal: (1) the Fair Sentencing
Act of 2010 should be applied retroactively to Scaife’s
sentence; (2) Scaife’s sentence is substantively and
procedurally erroneous; (3) the appellate waiver is
unenforceable because his sentence resulted from ineffective
counsel; and (4) the appellate waiver is unenforceable because
Scaife was not aware of the sentence that would be imposed. The
Government has moved to dismiss Scaife’s appeal as barred by the
appellate waiver clause in his plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews
the validity of an appellate waiver de novo, and will enforce
the waiver if it is valid and the issues appealed are within the
scope thereof. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. To

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determine whether a waiver is knowing and intelligent, this
court examines the background, experience, and conduct of the
defendant. United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002). Generally, if the district court fully questions a
defendant regarding the waiver during the Fed. R. Crim. P. 11
plea colloquy, the waiver is both valid and enforceable. United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
Ultimately, however, the issue is “evaluated by reference to the
totality of the circumstances.” General, 278 F.3d at 400. “An
appeal waiver is not knowingly or voluntarily made if the
district court fails to specifically question the defendant
concerning the waiver provision . . . during the Rule 11
colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver.”
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(internal quotation marks omitted).
Our review of the record leads us to conclude that
Scaife knowingly and voluntarily waived the right to appeal his
conviction and sentence. Scaife’s sentencing challenges fall
within the scope of the waiver, and we grant the motion to
dismiss and dismiss the appeal as to those claims.
We conclude, however, that Scaife’s claim of
ineffective assistance of counsel at sentencing is not within
the scope of the waiver. See Blick, 408 F.3d at 171.

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Therefore, we deny the motion to dismiss to the extent Scaife
asserts this claim on appeal. However, the claim is not
cognizable on direct appeal, as ineffective assistance does not
conclusively appear on the record. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Scaife is free
to assert these claims in a future 28 U.S.C.A. § 2255 (West
Supp. 2010) motion if he so chooses. See United States v.
Baptiste, 596 F.3d 214, 216-17 n.1 (4th Cir. 2010).
We therefore affirm Scaife’s conviction and dismiss
the appeal to the extent Scaife seeks to challenge his sentence.
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

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