UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4888
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEE MILLER, a/k/a Bobby,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00032-FPS-JES-3)
Submitted: April 22, 2010 Decided: May 20, 2010
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant. John C. Parr, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lee Miller appeals his conviction and sentence
of twenty-four months of imprisonment imposed after he pled
guilty, pursuant to a plea agreement, to one count of aiding and
abetting the distribution of cocaine base within 1000 feet of a
protected location, in violation of 21 U.S.C. §§ 841(a)(1), 860
(2006). On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states there are no
meritorious issues for appeal, but questions whether the
district court erred in accepting Miller’s guilty plea and
concluding that his plea was knowing, intelligent, and
voluntary. Miller was advised of his right to file a pro se
supplemental brief, but has not filed a brief. The Government
has moved to dismiss Miller’s appeal based upon a waiver of
appellate rights in his plea agreement.
This court reviews the validity of a waiver de novo,
United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000),
and will uphold a waiver of appellate rights if the waiver is
valid and the issue being appealed is covered by the waiver.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A
waiver is valid if the defendant’s agreement to the waiver was
knowing and voluntary. United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,
167 (4th Cir. 1991).
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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 Cir. 2002) (internal
quotation marks omitted). Generally, if a district court fully
questions a defendant regarding the waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.
Wessells, 936 F.2d at 167-68. In this case, Miller does not
assert that his waiver was not voluntary, and our review of the
record leads us to conclude that Miller’s waiver of his right to
appeal was knowing and voluntary and should be enforced to
preclude any review of potential sentencing error. Miller’s
waiver does not, however, include a waiver of his right to
appeal his conviction, which counsel raises by questioning
whether the district court complied with Fed. R. Crim. P. 11 and
properly found Miller’s plea knowing, intelligent, and
voluntary.
Because Miller did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). The record reveals that the district
court substantially complied with the requirements of Rule 11 in
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accepting Miller’s guilty plea, and ensured that Miller’s plea
was knowing and voluntary and supported by a sufficient factual
basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991).
Accordingly, we deny the Government’s motion to
dismiss in part and affirm Miller’s conviction. We grant the
motion to dismiss with regard to any potential sentencing error
that may be revealed by our review pursuant to Anders. In
accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal that
are not encompassed by the appeal waiver. This court requires
that counsel inform Miller, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Miller 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
Miller. 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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