UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY JOSE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00011-JPB-DJJ-2)
Submitted: October 7, 2009 Decided: October 15, 2009
Before WILKINSON, KING, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
William T. Rice, Martinsburg, West Virginia, for Appellant.
Thomas Oliver Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Jose Davis seeks to appeal his conviction for
distribution of cocaine base, in violation of 18 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006), and the resulting seventy-seven
month sentence. On appeal, counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that in
his opinion, there are no meritorious issues for review, but
questioning whether the district court erred in calculating the
guidelines sentencing range by awarding criminal history points
for a 1991 bank robbery conviction. Davis was notified of his
right to file a pro se supplemental brief but has not done so.
The Government has moved to dismiss the appeal,
asserting it is barred by Davis’s appellate waiver in the
validly entered plea agreement. Davis’s counsel has responded
that the motion to dismiss should be denied because the court is
required to conduct an independent review of the record for
meritorious issues in accordance with Anders.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Federal Rule of Criminal Procedure 11, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137,
2
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).
Our review of the record leads us to conclude that
Davis knowingly and voluntarily waived the right to appeal any
sentence within the statutory maximum. The sole issue he raises
on appeal falls within the scope of this waiver. We therefore
grant the Government's motion to dismiss in part 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 Davis’s conviction that may
be revealed pursuant to the review required by Anders. In
accordance with Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore deny
the Government’s motion to dismiss in part and affirm Davis’s
conviction.
This court requires that counsel inform Davis, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Davis requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
3
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Davis.
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.
DISMISSED IN PART;
AFFIRMED IN PART
4