UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5246
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GERMAINE VERNON WALLACE, a/k/a Rescue Ranger,
a/k/a The Kid,
Defendant - Appellant.
No. 06-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM MARK MANNS,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-05-267-WDQ)
Submitted: May 2, 2007 Decided: July 12, 2007
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald E. Kaplan, Baltimore, Maryland; Randolph O. Gregory, Sr.,
Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United
States Attorney, Steven H. Levin, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, Germaine Vernon Wallace and
William Mark Manns each pleaded guilty to one count of conspiracy
to distribute one kilogram or more of heroin, a violation of 21
U.S.C. § 846 (2000). Wallace received a sentence of 262 months’
imprisonment and Manns received a sentence of 188 months’
imprisonment. We affirm both convictions and sentences.
Counsel for Wallace and Manns filed briefs in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious grounds for appeal. Wallace’s counsel requested
this court’s review of the validity of an appellate waiver
provision in Wallace’s plea agreement and whether Wallace had
received ineffective assistance of counsel. Wallace also filed a
pro se supplemental brief. Manns’ counsel requested this court’s
consideration of whether the district court erred in failing to
grant a hearing regarding the Government’s refusal to file a motion
for downward departure pursuant to U. S. Sentencing Guidelines
Manual § 5K1.1 (2004). Although informed of his right to file a
supplemental brief, Manns did not do so.
With respect to Wallace’s appeal, No. 05-5426, this court
reviews the validity of a waiver of appellate rights de novo.
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000). If the
waiver is valid and the issue appealed is covered by the waiver,
and, as here, the Government relies upon the waiver, the court will
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uphold it. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir.
2005); United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994).
A waiver is valid if the defendant’s agreement to the waiver was
knowing and voluntary. United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992); United States v. Wessells, 936 F.2d 165, 167 (4th
Cir. 1991). Generally, if a district court fully questions a
defendant regarding the waiver of appellate rights during the Fed.
R. Crim. P. 11 colloquy, the waiver is valid. Wessells, 936 F.2d
at 167-68.
Here, the district court conducted a thorough Rule 11
colloquy. The court also specifically discussed the appeal waiver
provision, and Wallace indicated he understood it. Wallace agreed
to waive appellate review of his sentence “and any issues that
relate to the establishment of the advisory guidelines range.” The
issue Wallace raised in his supplemental brief relates to the
establishment of his sentence, and is accordingly precluded by the
appellate waiver. The issues raised by Wallace’s counsel, however,
fall outside the scope of this waiver.
Because the district court conducted a proper Rule 11
colloquy, Wallace’s challenges to the appellate waiver and the
district court’s acceptance of his guilty plea fail on the merits.
With respect to his ineffective assistance of counsel claim,
Wallace must show conclusively from the face of the record that
counsel provided ineffective representation. See United States v.
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James, 337 F.3d 387, 391 (4th Cir. 2003). Here, the record does
not conclusively demonstrate ineffective assistance of counsel.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Wallace’s conviction and sentence. This court
requires that counsel inform Wallace in writing, of the right to
petition the Supreme Court of the United States for further review.
If Wallace 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 Wallace.
With respect to Manns’ appeal, No. 06-4047, we find no
reversible error in the district court’s refusal to grant Manns a
hearing on the Government’s determination it would not file a
motion for a downward departure. In accordance with Anders, we
have reviewed the record in this case and have found no meritorious
issues for appeal. We therefore affirm Manns’ sentence. This
court requires that counsel inform Manns in writing, of the right
to petition the Supreme Court of the United States for further
review. If Manns 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
Manns.
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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.
No. 05-5246 - AFFIRMED
No. 06-4047 - AFFIRMED
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