UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6467
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEOFFREY H. SIMMONS, JR., a/k/a Geoffrey Henderson Simmons,
Jr.,
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. (5:04-cr-00003-FL-1)
Submitted: March 3, 2009 Decided: March 23, 2009
Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Anne Margaret Hayes, Steve R.
Matheny, Assistant United States Attorneys, Frank DeArmon
Whitney, United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Geoffrey H. Simmons, Jr., appeals from his convictions
and sentence for possession with intent to distribute cocaine,
cocaine base, and marijuana, and possession of a firearm in
relation to a drug trafficking crime. On appeal, Simmons’
attorney has filed an Anders * brief, noting that Simmons waived
the right to appeal his sentence, but questioning whether
Simmons was properly sentenced under United States v. Booker,
543 U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct.
558 (2007), both of which were decided after Simmons’
sentencing. Simmons 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 Simmons’
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
*
Anders v. California, 386 U.S. 738 (1967).
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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 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 (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).
The transcript of the plea hearing reveals that
Simmons, a twenty-nine-year-old high school graduate, understood
the waiver provision in his plea agreement. In his plea
agreement, Simmons specifically waived the right to challenge
his sentence on appeal, reserving only the right to challenge an
upward departure from the Guidelines range established at
sentencing, and Simmons averred at his Rule 11 hearing that he
read and understood the plea agreement. We therefore conclude
that Simmons knowingly and intelligently waived the right to
appeal his sentence.
Turning to the scope of the waiver, the sentencing
claims Simmons raises on appeal fall within the scope of the
waiver provision. See id. at 169-70 (holding that waiver of
right to appeal sentence in plea agreement accepted before
decision in United States v. Booker, 543 U.S. 220 (2005), was
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not invalidated by change in law). Because Simmons’ valid and
enforceable waiver of appellate rights precludes review of the
sentencing issues 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 Simmons’
right to appeal his sentence. Defense counsel does not assert
any errors related to Simmons’ guilty plea or convictions.
However, counsel correctly notes in the response to the motion
to dismiss that Simmons’ 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 Simmons’ 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 Simmons’
convictions.
Thus, the Government’s motion to dismiss is granted in
part and denied in part, Simmons’ appeal of his sentence is
dismissed, and his convictions are affirmed. This court
requires that counsel inform his client, in writing, of his
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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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