UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN KELVIN ELLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:06-cr-00232-REP)
Submitted: August 6, 2007 Decided: August 27, 2007
Before NIEMEYER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Richmond, Virginia, for Appellant. John Ciulla,
Special Assistant United States Attorney, Fort Lee, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Kelvin Ellis pled guilty to operating a motor
vehicle on a Virginia highway at Fort Lee, a place within the
special maritime jurisdiction of the United States, after having
been determined to be an habitual offender (fifth offense)
(Count 2), in violation of 18 U.S.C. § 13 (2000), assimilating Va.
Code Ann. § 46.2-357(B)(3) (2005); unlawfully and knowingly
refusing to submit to a breathalyser test after being arrested for
an offense of driving under the influence of alcohol on federal
property (Count 4), in violation of 18 U.S.C. § 3118 (2000); and
failing to stay within one lane when operating a motor vehicle on
a divided highway on federal property (Count 5), in violation of 32
C.F.R. § 634.25(f) (2007), assimilating Va. Code Ann. § 46.2-804
(2005). On appeal, counsel has filed an Anders* brief, stating
there are no meritorious issues for appeal but suggesting that
Ellis did not knowingly and voluntarily waive his right to appeal
and that Ellis’ sentence is unreasonable. Ellis also filed a pro
se supplemental brief, challenging the reasonableness of his
sentence. The Government has moved to dismiss the appeal,
asserting that, because Ellis validly waived the right to appeal
his sentence in the plea agreement, we lack jurisdiction over the
appeal. We affirm in part and dismiss in part.
*
Anders v. California, 386 U.S. 738 (1967).
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A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Amaya-Portillo, 423
F.3d 427, 430 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The question of whether a defendant validly
waived his right to appeal is a question of law that we review de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that,
despite Ellis’ inability to read well, Ellis knowingly and
voluntarily waived the right to appeal his sentence. Moreover, the
sentencing issues raised on appeal fall within the scope of the
waiver. We therefore grant, in part, the Government’s motion to
dismiss and dismiss this portion of the appeal.
Although the waiver provision in the plea agreement
precludes our review of the sentence, we note that Ellis was not
asked whether he understood he also was waiving the right to appeal
his convictions. Thus, the waiver does not preclude our review of
any errors in Ellis’ conviction that may be revealed by our review
pursuant to Anders. Our review of the transcript of the plea
colloquy leads us to conclude that the magistrate judge and the
district court fully complied with the mandates of Rule 11 in
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accepting Ellis’ guilty plea on each count. Thus, we deny, in
part, the Government’s motion to dismiss and affirm the
convictions.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the waiver. We therefore affirm Ellis’ convictions and
dismiss the appeal of his sentence. This court requires that
counsel inform her client, in writing, of the 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.
AFFIRMED IN PART;
DISMISSED IN PART
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