United States v. Dipasalegne

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4648

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT DIPASALEGNE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:05-cr-00357-REP-1)

Submitted: October 15, 2007 Decided: October 29, 2007

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

William J. Dinkin, DINKIN & PURNELL, Richmond, Virginia, for
Appellant. Olivia N. Hawkins, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Robert Dipasalegne pled guilty to possession with intent

to distribute five grams or more of crack cocaine, in violation of

21 U.S.C. § 841(a)(1) (2000), and the district court sentenced him

to a 210-month term of imprisonment. On appeal, counsel has filed

an Anders* brief, stating there are no meritorious issues for

appeal but suggesting that Dipasalegne’s sentence is unreasonable.

Dipasalegne was informed of his right to file a pro se supplemental

brief, but he has not done so. The Government has moved to dismiss

the appeal based upon the waiver-of-appellate-rights provision in

the plea agreement. 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

Dipasalegne knowingly and voluntarily waived the right to appeal

*
Anders v. California, 386 U.S. 738 (1967).

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his sentence. Moreover, the sentencing issue raised on appeal

falls 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 Dipasalegne was

not asked whether he understood that he also was waiving the right

to appeal his conviction. Thus, the waiver does not preclude our

review of any error in Dipasalegne’s 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 accepting Dipasalegne’s guilty plea and

ensured that Dipasalegne knowingly and voluntarily entered his

plea, which was supported by an independent factual basis. See

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir.

1991). Thus, we deny, in part, the Government’s motion to dismiss

and affirm the 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 Dipasalegne’s

conviction and dismiss the appeal of his sentence. This court

requires that counsel inform his client, in writing, of the right

to petition the Supreme Court of the United States for further

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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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