UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4064
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CORNELIUS I. HAYES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:12-cr-00046-HEH-1)
Submitted: August 9, 2013 Decided: August 14, 2013
Before MOTZ, SHEDD, and DIAZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Robert J. Wagner, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Peter Sinclair Duffey,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Ivan Hayes pled guilty, pursuant to a plea
agreement, to use of a firearm in a crime of violence causing
the death of another person, in violation of 18 U.S.C.
§§ 924(c), 924(j) (2006). On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal but questioning
whether Hayes knowingly and voluntarily waived his right to
appeal and whether the district court erred in applying a
sentencing enhancement for reckless endangerment during flight.
Hayes was informed of his right to file a pro se brief but has
not done so. The Government has filed a motion to dismiss this
appeal on the ground that Hayes knowingly and intelligently
waived the right to appeal his sentence and conviction. For the
reasons that follow, we dismiss in part and affirm in part.
In his plea agreement, Hayes waived the right to
appeal his sentence and conviction, reserving only the right to
appeal those issues that may not be waived by law. “A defendant
may waive the right to appeal . . . so long as the waiver is
knowing and voluntary.” United States v. Copeland, 707 F.3d
522, 528 (4th Cir. 2013), petition for cert. filed, ___ U.S.L.W.
___ (U.S. May 28, 2013) (No. 12-10514) (internal quotation marks
omitted). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
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Fed. R. Crim. P. 11 colloquy and the record reveals that the
defendant understood the full import of the waiver, the waiver
is both valid and enforceable. Id. A review of the record
reveals that the court determined Hayes was competent to plead
guilty, had the opportunity to discuss his plea agreement with
counsel, entered his guilty plea in the absence of threats or
force, and understood the terms of his appeal waiver. Thus, we
conclude that Hayes validly waived his right to appeal his
sentence and conviction and that the sentencing claim raised on
appeal falls within the scope of his waiver. Id. (providing
standard).
Accordingly, we grant the Government’s motion to
dismiss in part and dismiss the appeal of Hayes’s sentence and
conviction as to any issue for which waiver is legally
permissible, including the raised issue of reckless endangerment
as a sentence enhancement. Although the waiver provision in the
plea agreement precludes our review of most issues related to
Hayes’s sentence and conviction, the waiver does not preclude
our review of any errors that may not be waived and that may be
revealed by our review pursuant to Anders. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (naming issues not
waived by appellate waiver). In accordance with Anders, we have
reviewed the record in this case and have found no unwaived
meritorious issues for appeal. We therefore deny in part the
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Government’s motion to dismiss and affirm Hayes’s sentence and
conviction on any grounds not encompassed by his knowing and
intelligent appellate waiver.
This court requires that counsel inform Hayes, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Hayes 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 Hayes. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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