Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4523
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ONE MALE JUVENILE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-01-4)
Submitted: June 18, 2004 Decided: July 9, 2004
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Charlotte, North Carolina,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
One Male Juvenile (“1MJ”) appeals his three-year sentence
to run consecutively with a state sentence he was then serving in
Florida following his guilty plea to one count of wire fraud, in
violation of 18 U.S.C. § 1343 (2000). 1MJ’s attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Although counsel states there are no meritorious issues for appeal,
she challenges the district court’s imposition of the sentence for
the wire fraud offense to run consecutively with the state sentence
1MJ was already serving. The Government filed a responding brief.
Although advised of his right to file a pro se supplemental brief,
1MJ has not done so. In accordance with Anders, we have considered
the briefs and examined the entire record for meritorious issues.
Finding no error, we affirm.
We find that 1MJ waived his right to appeal his
conviction and sentence either directly or in post-conviction
proceedings, with the exception of claims of ineffective assistance
of counsel and prosecutorial misconduct. It is well-settled that
a defendant may, in a valid plea agreement, waive the right to
appeal under 18 U.S.C. § 3742 (2000), as long as it is the result
of a knowing and intelligent decision to forego the right to
appeal. United States v. Wessells, 936 F.2d 165 (4th Cir. 1991).
Generally, if the district court fully questions the defendant
regarding the waiver of his right to appeal during the Fed. R.
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Crim. P. 11 colloquy, the waiver is both valid and enforceable.
Id. at 167-68. We review de novo the validity of a waiver. United
States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000).
A review of the transcript of the guilty plea hearing
reveals that the magistrate judge* fully complied with Rule 11 in
accepting 1MJ’s guilty plea. The magistrate judge advised 1MJ of
the elements of the offense to which he was pleading guilty and
concluded he understood them. The judge also thoroughly apprised
1MJ of the rights he was waiving by pleading guilty and the
possible sentence he faced. Importantly, the magistrate judge
specifically asked 1MJ whether he understood that pursuant to the
plea agreement he was waiving his appellate and post-conviction
rights, except in relation to claims of ineffective assistance of
counsel and prosecutorial misconduct. 1MJ acknowledged his
understanding and noted that he knowingly and willingly accepted
this limitation. The magistrate judge further ascertained that 1MJ
was entering his plea voluntarily and that he was satisfied with
the services of counsel. For these reasons, we find 1MJ’s waiver
was knowing and intelligent. Accordingly, he may not appeal his
sentence.
In accordance with Anders, we have reviewed the entire
record in this case, including the Rule 11 and sentencing
*
The parties expressly consented to administration of the
guilty plea hearing by a magistrate judge.
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transcripts, and have found no meritorious issues for appeal. We
therefore affirm 1MJ’s sentence. This court requires that counsel
inform her client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
to withdraw from representation at that time. Counsel’s motion
must state that a copy thereof was served on 1MJ.
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
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