UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4962
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUFUS HOPKINS, a/k/a Rock,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-00153-JFA-1)
Submitted: September 10, 2009 Decided: October 8, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville,
South Carolina, for Appellant. Mark C. Moore, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rufus Hopkins appeals from his convictions for
conspiracy to distribute cocaine and a related financial
conspiracy, as well as his resulting life sentence. His
attorney filed an Anders * brief, stating that there are no
meritorious issues for appeal given Hopkins’s waiver of
appellate rights in his plea agreement, but raising the
questions of whether the district court abused its discretion in
denying Hopkins’s motion to withdraw his plea or whether the
district court clearly erred in determining that Hopkins was not
entitled to an acceptance of responsibility adjustment. Hopkins
filed a pro se supplemental brief, alleging that his prosecution
violated the statute of limitations for conspiracy. The
Government moved to dismiss the appeal based upon the waiver.
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 regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is
both valid and enforceable. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005); United States v. Wessells, 936
*
Anders v. California, 386 U.S. 738 (1967).
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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. Blick, 408 F.3d at 168.
Waiver of appeal of a sentence does not bar the appeal
of a sentence imposed in excess of the statutory maximum or a
challenge to the validity of a guilty plea. United States v.
General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992). Further, a defendant
does not waive the right to appeal a sentence based on a
constitutionally impermissible factor such as race, Marin, 961
F.2d at 496, or proceedings conducted in violation of the Sixth
Amendment right to counsel following the entry of the guilty
plea. United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.
1994).
The district court informed Hopkins of the waiver at
the Rule 11 hearing, and Hopkins stated that he understood.
Moreover, at sentencing, the district court rejected Hopkins’s
assertions that his plea was coerced and unknowing; we will
generally not review a district court’s credibility decision.
See United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995).
Therefore, we find that Hopkins knowingly and intelligently
waived the right to appeal his conviction and sentence.
Thus, given the scope of his waiver, Hopkins has
waived review of his claims that the district court improperly
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denied him an acceptance of responsibility adjustment and that
his conviction violated the statute of limitations. These
claims involved neither the validity of the guilty plea nor the
legality of the sentence. However, Hopkins’s assertion that the
district court improperly denied his motion to withdraw his
guilty plea does implicate the validity of the plea and is,
thus, unwaived. Accordingly, we grant the Government’s motion
to dismiss in part and dismiss the challenges to Hopkins’s
sentence and the statute of limitations claim. We deny the
motion with regard to Hopkins’s challenge to his conviction.
Turning to this latter challenge -- the denial of
Hopkins’s motion to withdraw his guilty plea -- we have reviewed
the Anders brief and the record, and we find no reversible
error. Accordingly, we conclude, for the reasons stated by the
district court, that the motion was properly denied. (See E.R.
at 368-76.) In addition, in accordance with Anders, we have
examined the entire record for unwaived error and found none.
Thus, we affirm Hopkins’s convictions.
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
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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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