United States v. Shifflett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4795

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAMES HOWARD SHIFFLETT,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:99-cr-00042-JPB)

Submitted: July 12, 2010 Decided: July 27, 2010

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Scott Charlton Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, 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Unpublished opinions are not binding precedent in this circuit.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:

James Howard Shifflett pled guilty to distributing

oxycodone in violation of 21 U.S.C. § 841(a)(1) (2006). The

district court sentenced him to 151 months. On appeal, counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal

but questioning whether the district court erred by accepting

Shifflett’s guilty plea when the stipulated relevant conduct

included pills that were double counted. Shifflett was informed

of his right to file a pro se supplemental brief but has not

done so. The Government has moved to dismiss the appeal based

upon Shifflett’s waiver of appellate rights. 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. 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 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).

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Our review of the record leads us to conclude that

Shifflett knowingly and voluntarily waived the right to appeal

his sentence. Moreover, the issue raised on appeal is a

sentencing issue, which falls within the scope of the waiver.

We therefore grant, in part, the Government’s motion to dismiss

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 Shifflett’s conviction that

may be revealed by our review pursuant to Anders. Our review of

the transcript of the plea colloquy convinces us that the

district court fully complied with the mandates of Rule 11 in

accepting Shifflett’s guilty plea. The district court 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, in part, the Government’s motion to dismiss and affirm the

conviction.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues not

covered by the waiver. We therefore affirm Shifflett’s

conviction and dismiss the appeal of his sentence. This court

requires that counsel inform his client, in writing, of the

right to petition the Supreme Court of the United States for

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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