UNPUBLISHED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Affirmed in part, dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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