UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ANTHONY STUKES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (7:05-cr-00140-FL)
Submitted: June 29, 2007 Decided: July 16, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana Pereira, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Anthony Stukes pled guilty to possession with intent
to distribute cocaine base and use and carry of a firearm during or
in relation to a drug trafficking offense. He was sentenced within
his advisory guideline sentencing range to 285 months in prison.
On appeal, his attorney has filed an Anders1 brief, noting that,
because Stukes waived the right to appeal his sentence in his plea
agreement, there were no meritorious issues on appeal.
Nonetheless, the brief questions whether Stukes’ sentence was
unreasonably harsh. Although informed of his right to do so,
Stukes has not filed a pro se supplemental brief. The Government
has moved to dismiss the appeal based on the waiver. We grant the
motion in part and dismiss the appeal of Stukes’ sentence. After
a review of the record under Anders, we affirm Stukes’ conviction.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C.A. § 3742 (West 2000 & Supp. 2007).
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Any
such waiver must be made by a knowing and intelligent decision to
forgo the right to appeal. United States v. Broughton-Jones, 71
F.3d 1143, 1146 (4th Cir. 1995). Whether a defendant has
effectively waived his right to appeal is an issue of law we review
de novo. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992).
1
Anders v. California, 386 U.S. 728 (1967).
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To the extent Stukes is appealing his sentence, we grant
the Government’s motion to dismiss. The district court’s plea
colloquy was thorough and conformed to the dictates of Fed. R.
Crim. P. 11. Moreover, Stukes does not challenge the voluntariness
of his waiver. Because Stukes knowingly and voluntarily entered
into the plea agreement, the waiver is enforceable.
The waiver expressly precluded Stukes from appealing any
sentence that was either within or below the advisory Sentencing
Guidelines range. Because the sentence imposed was within the
advisory range, any challenge to the district court’s sentence,
including Stukes’ claims that his sentence was unreasonably harsh,
falls within the scope of that waiver. As such, we grant the
Government’s motion to dismiss Stukes’ appeal to the extent that
Stukes appeals his sentence.2
However, the waiver’s enforceability does not completely
dispose of this appeal. Our interpretation of Stukes’ plea
agreement is guided by contract law. United States v. McQueen, 108
F.3d 64, 66 (4th Cir. 1997). The appellate waiver was limited to
Stukes’ right to appeal his sentence. Accordingly, the waiver
provision does not foreclose Stukes’ right to appeal with respect
2
Stukes asserts that the Government should have moved to
dismiss earlier in the proceedings and that its failure to do so
has caused “the wasteful use of limited resources.” (Motion at p.
2). However, because Stukes’ waiver did not cover all possible
appellate issues, the Government could not move to dismiss the
appeal until it was clear what issues were being raised.
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to issues not expressly covered by the waiver. See United States
v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). As such, we deny the
Government’s motion to dismiss as it relates to the convictions.
Although Stukes does not raise a specific challenge to
his guilty plea, pursuant to Anders, we must also review Stukes’
conviction for any potentially meritorious issues. As outlined
above, a review of the Rule 11 hearing demonstrates that Stukes’
plea was knowing and voluntary, and he does not assert otherwise.
Accordingly, his convictions are affirmed.
This court requires that counsel inform his 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 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.
DISMISSED IN PART;
AFFIRMED IN PART
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