UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4464
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ENNOS MORRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00096-IMK)
Submitted: October 18, 2007 Decided: October 23, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West
Virginia, for Appellant. Zelda Elizabeth Wesley, OFFICE OF THE
UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ennos Morris pled guilty to aiding and abetting in the
distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) (2000), 18 U.S.C. § 2 (2000). The district court
sentenced Morris to 92 months’ imprisonment, three years of
supervised release, and ordered payment of a $100 statutory
assessment.1 Morris’ counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but questioning whether the
district court erred in overruling his objections to the
presentence investigation report that his criminal history was
overstated, and asserting that his sentence was unreasonable.
Morris, pro se, joins his attorney in claiming that his objections
to his presentence investigation report were valid, and that his
sentence was unreasonable. He further challenges the validity of
his partial waiver of his appeal rights, on the ground of
ineffective assistance of counsel.
The Government has moved to dismiss the appeal, asserting
that because Morris validly waived his right to appeal any sentence
based on a base offense level of twenty-six or less in his plea
1
The probation officer calculated an advisory sentencing
guideline range for Morris of 92 to 115 months’ imprisonment,
founded on a base offense level of 26, from which he then deducted
three levels for acceptance of responsibility, for a resultant
total offense level of 23, and a criminal history category of VI.
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agreement, we lack jurisdiction over the appeal. We affirm in part
and dismiss in part.
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 Morris
knowingly and voluntarily waived the right to appeal his sentence.2
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 the sentencing portion of the appeal.
Although the waiver provision in the plea agreement
precludes our review of the sentence, we note that Morris did not
waive his right to appeal his conviction. Thus the waiver does not
preclude our review of any error in Morris’ conviction that may be
2
As there is no ineffective assistance of counsel found on the
face of the record, we decline to consider Morris’ claim on direct
appeal. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991).
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revealed by our review pursuant to Anders. Our review of the
transcript of the plea colloquy leads us to conclude that the
district court fully complied with the mandates of Rule 11 in
accepting Morris’ guilty plea. Thus, we deny, in part, the
Government’s motion to dismiss and affirm Morris’ conviction.
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 Morris’ conviction and
dismiss the appeal of his sentence. We further deny, as moot, the
Government’s motion for stay. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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