UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH EDWARDS, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-377-WDQ)
Submitted: November 17, 2005 Decided: November 22, 2005
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed in part, and dismissed in part by unpublished per curiam
opinion.
Thomas McCarthy, Jr., MCCARTHY & MCCARTHY, LLC, Annapolis,
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney,
Christopher J. Romano, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Edwards, III, pled guilty, pursuant to a plea
agreement, to conspiracy to distribute fifty grams or more of
cocaine base within 1000 feet of a public housing facility under 21
U.S.C. § 860(a) (2000). In his plea agreement, he waived his right
to appeal his Federal Sentencing Guidelines sentence, except for an
upward departure of his sentencing range. Edwards was sentenced
below his Guideline range to 121 months of imprisonment. On
appeal, Edwards’ counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), alleging there are no meritorious
issues for appeal and conceding that Edwards’ appeal of his
sentence is precluded by our recent decision in United States v.
Blick, 408 F.3d 162 (4th Cir. 2005). Counsel suggests, however,
that perhaps he provided ineffective assistance by failing to
encourage Edwards to attempt to withdraw his plea following the
Supreme Court’s opinion in Blakely v. Washington, 542 U.S. 296
(2004). Despite notice, Edwards has not filed a pro se
supplemental brief. For the reasons that follow, we dismiss in
part, and affirm in part.
We dismiss Edwards’ appeal of his sentence as the record
reveals he knowingly and voluntarily waived his to appeal his
sentence. Where, as here, the United States seeks enforcement of
a waiver, and there is no claim that the Government breached its
obligations under the plea agreement, we will enforce the waiver to
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preclude a defendant from appealing a specific issue if the record
establishes that the waiver is valid and that the issue being
appealed is within the scope of the waiver. Blick, 408 F.3d at
168.
We do not find that Edwards’ counsel provided ineffective
assistance by failing to seek withdrawal of Edwards’ plea following
the Supreme Court’s opinion in Blakely and its subsequent
application of Blakely to the Federal Sentencing Guidelines in
United States v. Booker, 125 S. Ct. 738 (2005). In Blick, this
court rejected the claim that a defendant’s plea was rendered
invalid because the Supreme Court’s later opinion in Booker found
the mandatory Sentencing Guidelines unconstitutional. Blick, 408
F.3d at 170; see also United States v. Johnson, 410 F.3d 137,
152-53 (4th Cir. 2005) (rejecting Johnson’s argument that a
defendant cannot waive the right to an appeal based on subsequent
changes in the law). Thus, we do not find ineffective assistance
of counsel conclusively appearing on the record, as required to
establish such a claim on direct appeal. United States v. James,
337 F.3d 387, 391 (4th Cir. 2003), cert. denied, 540 U.S. 1134
(2004). Accordingly, we affirm as to this claim.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We deny counsel’s motion to withdraw, and note that
counsel must inform Edwards, in writing, of his right to petition
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the Supreme Court of the United States for further review. If
Edwards requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may renew his
motion for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Edwards. 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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