UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4131
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY KEITH HARPER, a/k/a Jay,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00049-JPB-DJJ-4)
Submitted: January 30, 2009 Decided: February 10, 2009
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Matthew A. Victor, VICTOR, VICTOR & HELGOE, LLP, Charleston,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Keith Harper pled guilty, pursuant to a
written plea agreement, to aiding and abetting the distribution
of crack cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 18
U.S.C. § 2 (2006), and was sentenced to 151 months imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal. Although informed of his right
to file a supplemental pro se brief, Harper has not done so.
The Government has moved to dismiss the appeal based on a waiver
provision in Harper’s 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. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant at his Fed. R. Crim. P. 11
proceeding regarding the waiver of his right to appeal, 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). Whether a defendant
validly waives his right to appeal is a question of law that we
review de novo. Blick, 408 F.3d at 168.
After reviewing the record, we conclude that Harper
knowingly and voluntarily waived his right to appeal his
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sentence, retaining only his right to appeal a sentence beyond
the statutory maximum of twenty years. Harper was sentenced to
less than the statutory maximum and, therefore, he retained no
appellate rights with respect to his sentence. Accordingly, we
grant, in part, the Government’s motion to dismiss and dismiss
Harper’s appeal to the extent that it seeks appellate review of
his sentence.
The express terms of the waiver provision, however, do
not prevent our review of any errors in Harper’s conviction.
After reviewing the entire record in accordance with Anders, we
conclude that there are no issues not covered by the waiver that
are meritorious. We note in particular that the district court
complied with the mandates of Rule 11 in accepting Harper’s
guilty plea. Thus, we deny, in part, the Government's motion to
dismiss and affirm Harper’s conviction.
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 move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy of the motion was served on his client. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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