UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY RAY SEABOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cr-00032-REM-JSK-1)
Submitted: November 13, 2008 Decided: November 18, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Stephen Donald Warner, Assistant United
States Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Ray Seabolt pled guilty to aiding and abetting
the attempted manufacture of methamphetamine, and the district
court sentenced him to a 168-month term of imprisonment. On
appeal, counsel has filed an Anders 1 brief, concluding that there
are no meritorious issues for appeal, but questioning whether
the district court erred in calculating Seabolt’s Guidelines
range and in choosing an appropriate sentence. The Government
has moved to dismiss the appeal based upon Seabolt’s waiver of
appellate rights in his plea agreement. 2 Although informed of
his right to do so, Seabolt has not filed a pro se supplemental
brief. 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). The
question of whether a defendant validly waived his right to
1
Anders v. California, 386 U.S. 738 (1967).
2
Seabolt waived the right to appeal “any sentence, or the
manner in which it was determined, on any ground whatever.”
2
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 Rule 11 hearing discloses that
Seabolt was informed of the nature of the waiver and its
potential consequences and that he understood. Thus, we find
the waiver valid and enforceable. Moreover, the sentencing
issues raised on appeal fall 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, the waiver does not
preclude our review of any errors in Seabolt’s conviction that
may be revealed by our review pursuant to Anders. Nonetheless,
our review of the transcript of the plea colloquy leads us to
conclude that 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, 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 Seabolt’s conviction
and dismiss the appeal of his sentence. This court requires
that counsel inform the client, in writing, of the right to
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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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