UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS BRADLEY SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-34)
Submitted: August 19, 2005 Decided: September 30, 2005
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Writing and
Research Attorney, Raleigh, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis Bradley Sutton pled guilty to possession of stolen
firearms, in violation of 18 U.S.C. § 922(j) (2000), and possession
of seven firearms by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000), and the district court sentenced him to
concurrent terms of forty months of imprisonment. Citing
Blakely v. Washington, 542 U.S. 296 (2004), Sutton appeals his
sentence and contends that it violates the Sixth Amendment. The
Government asserts that Sutton validly waived the right to appeal
his sentence in the plea agreement. We agree with the Government
and dismiss the appeal.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Brown, 232 F.3d 399,
402-03 (4th Cir. 2000). 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).
We review de novo the question of whether a defendant validly
waived his right to appeal. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
Our review of the plea agreement and the hearing
conducted pursuant to Fed. R. Crim. P. 11 leads us to conclude that
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Sutton knowingly and voluntarily waived his right to appeal. See
General, 278 F.3d at 400-01; see also Blick, 408 F.3d at 169-73
(holding that plea agreement waiver of right to appeal that
district court accepted prior to the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005), was not invalidated
by change in law effected by that decision). Moreover, Sutton’s
Sixth Amendment claim falls within the scope of the waiver. See
Blick, 408 F.3d at 169 n.7 (concluding that “the [Supreme] Court’s
use of the term ‘statutory maximum’ in Blakely and Booker does not
alter the meaning of the language in the appeal waiver”).
Accordingly, we dismiss the appeal. 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.
DISMISSED
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