UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5172
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHAD MICHAEL SPAUR,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00051-JPB-DJJ-1)
Submitted: August 13, 2010 Decided: September 14, 2010
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Sherman L. Lambert, Sr., THE LAW OFFICES OF SHERMAN L. LAMBERT,
SR., PLLC, Shepherdstown, West Virginia, for Appellant. Betsy
C. Jividen, Acting United States Attorney, Erin K. Reisenweber,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chad Michael Spaur pled guilty pursuant to a plea
agreement to possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2006). The district
court sentenced him to 146 months of imprisonment. 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 in
making factual findings at sentencing. Spaur was informed of
his right to file a pro se supplemental brief but has not done
so. The Government responds by relying on Spaur’s waiver of
appellate rights and moving to dismiss the appeal. We affirm
the judgment below in part and dismiss the appeal 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 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
Spaur knowingly and voluntarily waived the right to appeal any
sentence within the statutory maximum. Spaur’s 146-month
sentence is within the applicable twenty-year statutory maximum.
21 U.S.C. § 841(b)(1)(C) (2006). Moreover, the issue raised on
appeal is a sentencing issue within the scope of the waiver. We
therefore grant, in part, the Government’s motion to dismiss,
which is set forth in its brief, and dismiss Spaur’s appeal of
his sentence.
Although the waiver provision in the plea agreement
precludes our review of Spaur’s sentence, it does not affect our
review of any errors in Spaur’s conviction that may be revealed
by our review pursuant to Anders. The transcript of the plea
colloquy discloses that the district court fully complied with
the mandates of Rule 11 in accepting Spaur’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). Accordingly, as the record reveals no infirmity in
the entry of Spaur’s guilty plea, we affirm his conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the plea agreement’s waiver of appellate rights. We
therefore affirm Spaur’s conviction and dismiss the appeal of
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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 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
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