UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GLEN RANDELL RATHBONE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-02-105)
Submitted: February 28, 2006 Decided: March 28, 2006
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Robert J. Conrad, Jr., United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Glen Randell Rathbone appeals his conviction and sentence
to 235 months in prison and five years of supervised release
following his guilty plea on one count of conspiracy to possess
with intent to distribute at least fifty grams of cocaine base in
violation of 21 U.S.C. §§ 841, 846 (2000). Rathbone’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and a letter pursuant to Fed. R. App. P. 28(j), asserting
there are no meritorious grounds for appeal but raising the issue
of whether the district court erred under United States v. Booker,
543 U.S. 220 (2005), when sentencing Rathbone at the low end of a
stipulated sentencing range. The Government asserts that Rathbone
waived his appellate rights. Rathbone has been informed of his
right to file a pro se supplemental brief but has not done so.
Because we conclude Rathbone waived his appellate rights, we affirm
his conviction and sentence.
Whether a defendant has effectively waived his right to
appeal is a matter of law we review de novo. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). When the Government
seeks to enforce a waiver of appellate rights, and there is no
claim the Government breached the parties’ agreement, we will
enforce the waiver if the record establishes the defendant
knowingly and intelligently agreed to waive the right to appeal,
and the issue being appealed is within the scope of the waiver.
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Id. at 168-69. An appeal waiver is not knowing or voluntary if the
district court fails to specifically question the defendant
concerning the waiver and the record indicates that the defendant
did not otherwise understand its full significance. See United
States v. Johnson, 410 F.3d 137, 151 (4th Cir.), cert. denied, 126
S. Ct. 461 (2005).
Following his guilty plea, Rathbone objected to the
amount of cocaine base attributed to him in the presentence report
and accordingly, to the determination of his base offense level
under U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2002).
However, Rathbone and the Government agreed and stipulated to a
lesser drug amount and final offense level in open court at
sentencing. The district court accepted the stipulation and
sentenced Rathbone to the low end of his stipulated guideline range
based on the lower drug amount. Accordingly, Rathbone waived his
right to appeal this issue. See United States v. Williams, 29 F.3d
172, 174-75 (4th Cir. 1994). Moreover, the parties’ stipulation
included Rathbone’s explicit waiver of his right to appeal, except
for claims of ineffective assistance of counsel or prosecutorial
misconduct, and the district court specifically questioned Rathbone
concerning the waiver and confirmed his understanding and agreement
to the waiver at his sentencing hearing. Rathbone does not allege
any claims of ineffective assistance or prosecutorial misconduct,
and no such claims are supported by the record before us on appeal.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Rathbone’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition to 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 for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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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