UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4633
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH PLUMMER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (5:07-cr-00004-FL)
Submitted: February 20, 2008 Decided: March 3, 2008
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Joseph Plummer 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
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2007).
On appeal, counsel has filed an Anders* brief, noting that Plummer
waived the right to appeal his sentence and, thus, that there are
no meritorious issues for appeal. In the event this court
invalidates the waiver, counsel asserts that Plummer’s sentence is
unreasonable because the district court used the 100:1 crack-to-
powder-cocaine ratio in determining Plummer’s base offense level.
Plummer 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 Plummer’s waiver of appellate rights. 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
*
Anders v. California, 386 U.S. 738 (1967).
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(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
Plummer knowingly and voluntarily waived the right to appeal his
sentence. Moreover, the sentencing issue raised on appeal falls
within the scope of the waiver. See id. at 169-70 (holding that
waiver of right to appeal in plea agreement accepted before
decision in United States v. Booker, 543 U.S. 220 (2005), was not
invalidated by change in law). 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, the waiver does not preclude
correction of any errors in Plummer’s convictions 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 fully complied with the mandates of Rule 11 in
accepting Plummer’s guilty plea on each count and that the
magistrate judge and the district court ensured that the plea was
entered knowingly and voluntarily and 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 convictions.
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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 Plummer’s convictions
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 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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