United States v. Tinsley

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4575

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CURTIS DARYLE TINSLEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:06-cr-00009-jlk)

Submitted: November 26, 2007 Decided: February 13, 2008

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant. Craig Jon Jacobsen, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Curtis Daryle Tinsley pled guilty to carrying a firearm

during and in relation to a drug trafficking crime, 18 U.S.C.

§ 924(c)(1) (2000), and distribution of more than fifty grams of

cocaine base, 21 U.S.C. § 841(a)(1) (2000). He was sentenced to

322 months of imprisonment. Tinsley’s 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 Tinsley’s guilty plea was knowing and voluntary because the

district court conducted the Fed. R. Crim. P. 11 hearing jointly,

for Tinsley and two of his co-defendants. Although Tinsley was

informed of his opportunity to file a pro se supplemental brief,

Tinsley has not done so. The Government has moved to dismiss the

appeal, asserting that Tinsley validly waived his right to appeal

in his 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 Rule 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.

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United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our

review of the record leads us to conclude that Tinsley knowingly

and voluntarily waived the right to appeal his sentence. Because

Tinsley’s valid and enforceable waiver of appellate rights

precludes review of any sentencing issues raised on appeal or

conducted by this court under Anders, we grant, in part, the

Government’s motion to dismiss the appeal of Tinsley’s sentence.

Although the waiver provision in the plea agreement

precludes our review of the sentence, Tinsley did not waive his

right to appeal his convictions. Thus, the waiver does not

preclude our review of any error in Tinsley’s convictions raised by

counsel or revealed by our review pursuant to Anders. We have

reviewed the transcript of the plea colloquy and find that the

district court fully complied with the mandates of Rule 11 in

accepting Tinsley’s guilty plea. With respect to counsel’s

argument that the court erred in conducting a joint Rule 11

proceeding of Tinsley and two of his co-defendants, counsel points

to no authority that such a proceeding is inherently improper or

that it renders a defendant’s guilty plea unknowing or involuntary.

Furthermore, there is no evidence in this particular case that the

collective proceeding violated any of Tinsley’s rights. The court

questioned Tinsley individually in conducting the Rule 11 colloquy

and discussed with him one-on-one the charges against him, his

range of punishment, and his plea agreement. Thus, we deny, in

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part, the Government’s motion to dismiss and affirm Tinsley’s

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 affirm Tinsley’s convictions and dismiss

the appeal of his sentence. We deny counsel’s motion to withdraw

at this juncture. 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 renew his motion at that time.

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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