UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS DEVON HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:08-cr-00156-D-1)
Submitted: March 29, 2010 Decided: April 13, 2010
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Devon Harris appeals his conviction and ninety-
month sentence imposed after his guilty plea to possession of a
firearm and ammunition by a convicted felon. 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 the district
court’s application of a sentencing enhancement. Harris has
filed a pro se supplemental brief also challenging this
sentencing enhancement. The Government has moved to dismiss the
appeal in part, asserting that the appellate waiver in Harris’s
plea agreement bars the sentencing challenge. We now dismiss
the appeal in part and affirm 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 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,
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
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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
Harris knowingly and voluntarily waived the right to appeal any
sentence that was not above the advisory Guidelines range and
any issues relating to the establishment of the Guidelines
range. The sentencing issue Harris raises on appeal falls
within the scope of this waiver. We therefore grant the
Government’s motion to 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 Harris’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
affirm Harris’s conviction.
This court requires that counsel inform Harris, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Harris 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 Harris. We dispense
with oral argument because the facts and legal contentions are
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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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