UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4889
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK ALVIN GERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:07-cr-00056-BR)
Submitted: March 20, 2008 Decided: April 14, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
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Unpublished opinions are not binding precedent in this circuit.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:
Patrick Alvin Gerald appeals from his convictions for
distribution of cocaine and cocaine base and his resulting 70-month
sentence. On appeal, Gerald’s attorney has filed an Anders* brief,
noting that Gerald waived the right to appeal his sentence, but
questioning whether the district court erred in denying Gerald’s
motion for a continuance of his sentencing hearing. Gerald was
informed of his right to file a pro se supplemental brief, but he
has not done so. The Government has filed a motion to dismiss the
appeal on the basis of Gerald’s waiver of the right to appeal in
his plea agreement.
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). To determine whether a waiver is
knowing and intelligent, this court examines “the totality of the
circumstances, including the experience and conduct of the accused,
as well as the accused’s educational background and familiarity
with the terms of the plea agreement.” United States v. General,
278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks and
citation omitted). 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.
*
Anders v. California, 386 U.S. 738 (1967).
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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 this court reviews de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
The transcript of the plea hearing reveals that Gerald,
a 33-year-old high school graduate, understood the waiver provision
in his plea agreement. In his plea agreement, Gerald specifically
waived the right to challenge his sentence on appeal, reserving
only the right to challenge a sentence in excess of the applicable
advisory Guideline range. We therefore conclude that Gerald
knowingly and intelligently waived the right to appeal his
sentence.
Turning to the scope of the waiver, the sentencing claim
Gerald raises on appeal falls within the scope of the waiver
provision. 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). In addition, Gerald’s sentence is within the
applicable statutory maximum sentence on each count. See 21
U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2007) (setting
twenty-year maximum for offenses involving a detectable amount of
powder cocaine); 21 U.S.C.A. § 841(b)(1)(B) (West 1999 & Supp.
2007) (setting forty-year maximum for offenses involving more than
five grams of crack cocaine). Finally, Gerald was sentenced within
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the advisory Guideline range. Because Gerald’s valid and
enforceable waiver of appellate rights precludes review of the
sentencing issue raised on appeal, we grant the Government’s motion
to dismiss in part and dismiss this portion of the appeal.
The waiver provision, however, only waived Gerald’s right
to appeal his sentence. Defense counsel does not assert any errors
related to Gerald’s guilty plea or convictions. However, counsel
correctly notes in the response to the motion to dismiss that
Gerald’s appeal waiver does not preclude our review pursuant to
Anders. In accordance with Anders, we have thoroughly examined the
entire record for any potentially meritorious issues not covered by
the waiver and have found none. The court fully complied with the
mandates of Rule 11 in accepting Gerald’s guilty plea and 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
the Government’s motion to dismiss in part and affirm Gerald’s
convictions.
Thus, the Government’s motion to dismiss is granted in
part and denied in part, Gerald’s appeal is dismissed in part, and
his convictions are affirmed. 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
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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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