UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4373
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICIA POE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:09-cr-00015-REM-JSK-1)
Submitted: September 3, 2010 Decided: September 22, 2010
Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Andrew Cogar, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patricia Poe appeals her conviction and twenty-one
month sentence for one count of bank fraud in violation of 18
U.S.C. § 1344 (2006). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal, but questioning whether
the district court erred in accepting Poe’s guilty plea. Poe
was notified of her right to file a pro se supplemental brief,
but has not done so. The Government has moved to dismiss,
arguing the appeal is precluded by the appellate waiver in Poe’s
plea agreement. We grant the motion in part, dismiss in part,
and affirm.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews
the validity of an appellate waiver de novo, and will uphold the
waiver of appellate rights if the waiver is valid and the issue
on appeal is within the scope of the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
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
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States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks and citation omitted). Generally, if the
district court fully questions a defendant regarding the waiver
of her right to appeal during the Rule 11 colloquy, the waiver
is both valid and enforceable. Id.; 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).
We have reviewed the record and find that the guilty
plea, including the appellate waiver, was knowing, voluntary,
and supported by an adequate factual basis. The appeal waiver
only applies, however, to appeals taken from a sentence based
upon a total offense level of sixteen or lower. Because Poe’s
sentence was calculated based upon a total offense level of
sixteen, the motion is granted to the extent that Poe’s appeal
seeks review of her sentence. However, to the extent the Anders
brief requires review of non-sentencing issues, the appeal is
not precluded by the terms of the appellate waiver to which Poe
agreed.
Because Poe did not move in the district court to
withdraw her guilty plea, the Rule 11 proceeding is reviewed for
plain error, United States v. Martinez, 277 F.3d 517, 524-26
(4th Cir. 2002), which exists when an error occurs, is plain,
and affects a defendant’s substantial rights. United States v.
Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Poe makes
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this showing, “correction of the error remains within [this
court’s] discretion, which [it] should not exercise unless the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks, alteration, and ellipsis omitted).
Our review of the record leads us to conclude that the
district court fully complied with the requirements of Rule 11.
Its examination of Poe was thorough and the court went to great
lengths to ensure the plea was knowing and voluntary. In short,
the court did not err, let alone plainly so, in accepting Poe’s
plea.
We have reviewed the entire record in this case in
accordance with Anders and we find no meritorious issues for
appeal. Accordingly, we grant in part the Government’s motion
to dismiss, and affirm in part. This court requires that
counsel inform Poe, in writing, of her right to petition the
Supreme Court of the United States for further review. If Poe
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion was served on Poe.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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