UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5274
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY RAY MALONE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00072-FL)
Submitted: September 28, 2007 Decided: October 12, 2007
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Johnny Ray Malone pled guilty to possession with the
intent to distribute marijuana and possession of a firearm by a
convicted felon. He was sentenced within his advisory Guideline
range to 57 months in prison. On appeal, his attorney has filed an
Anders* brief, noting that, because Malone waived the right to
appeal in his plea agreement, there were no meritorious issues on
appeal. Nonetheless, the brief questions whether Malone’s sentence
was reasonable. Although informed of his right to do so, Malone
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 with regard to the issue
raised in Malone’s brief. After a review of the record under
Anders, we affirm Malone’s convictions and sentence.
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).
*
Anders v. California, 386 U.S. 738 (1967).
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To the extent Malone is appealing the reasonableness of
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, Malone does not
challenge the voluntariness of his waiver. Because Malone
knowingly and voluntarily entered into the plea agreement and the
waiver was reviewed at the plea hearing, the waiver is enforceable.
The waiver expressly precluded Malone from appealing any
sentence that was either within or below the advisory Guideline
range. Because the sentence imposed was within the advisory range,
any challenge to the district court’s sentence, including Malone’s
claims that his sentence was unreasonable, falls within the scope
of that waiver. As such, we grant the Government’s motion to
dismiss Malone’s appeal as to the claim raised in Malone’s brief.
However, the waiver’s enforceability does not completely
dispose of this appeal. Our interpretation of Malone’s plea
agreement is guided by contract law. United States v. McQueen, 108
F.3d 64, 66 (4th Cir. 1997). The appellate waiver expressly
permitted an appeal based upon ineffective assistance of counsel or
prosecutorial misconduct not known to Malone at the time of his
guilty plea. Accordingly, the waiver provision does not foreclose
Malone’s right to appeal with respect to these issues. See United
States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). As such, we
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deny the Government’s motion as it relates to ineffective
assistance or prosecutorial misconduct.
Though Malone does not raise a specific challenge based
on either of these issues, pursuant to Anders, we must review the
record for any meritorious issues. In accordance with Anders, we
have reviewed the entire record and found no viable claims of
ineffective assistance of counsel or prosecutorial misconduct that
are clear from the record. Accordingly, we affirm Malone’s
convictions and sentence.
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 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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