United States v. McAllister

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4387

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DON MCALLISTER,

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-00096-JPB-DJJ-1)

Submitted: October 7, 2010 Decided: November 12, 2010

Before MOTZ, DAVIS, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

Kevin D. Mills, MILLS & ASSOCIATES, P.L.L.C., Martinsburg, West
Virginia, for Appellant. Betsy C. Jividen, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Don McAllister appeals the criminal judgment entered

following his guilty plea, pursuant to a written plea agreement,

to possession with intent to distribute cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2006). On appeal, counsel

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

(1967), noting that McAllister waived his right to appeal his

sentence but questioning whether the district court abused its

discretion in denying McAllister’s unopposed motion to continue

the sentencing hearing. McAllister was informed of his right to

file a pro se supplemental brief, but he has not done so. The

Government has filed a motion to dismiss the appeal based on the

appellate waiver provision in McAllister’s plea agreement.

McAllister opposes the motion, arguing that the issue raised is

outside the scope of the appellate waiver.

We review a defendant’s waiver of appellate rights de

novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005). “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.” United States v. Amaya-Portillo,

423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks

omitted). To determine whether the waiver is knowing and

intelligent, we look to “the totality of the circumstances,

including the experience and conduct of the accused, as well as

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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 the district court fully questions the

defendant about the waiver during the Federal Rule of Criminal

Procedure 11 plea colloquy, the waiver is valid and enforceable.

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We

will enforce a valid waiver so long as “the issue being appealed

is within the scope of the waiver.” Blick, 408 F.3d at 168.

In his plea agreement, McAllister agreed to “waive[]

the right to appeal any sentence which is within the maximum

provided in the statute of conviction or . . . the manner in

which that sentence was determined on any ground whatever.”

Neither counsel nor McAllister asserts any error in the plea

colloquy or challenges the validity of McAllister’s appellate

waiver. Our review of the record leads us to conclude that

McAllister’s waiver was knowing and intelligent.

Turning to the scope of the waiver, we conclude that

the issue McAllister raises on appeal falls within the scope of

the appellate waiver provision. Additionally, McAllister was

sentenced to eighty-seven months’ imprisonment, within the

forty-year maximum sentence authorized by § 841. Thus,

McAllister’s claim on appeal is barred by the appellate waiver

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provision, and we grant the Government’s motion to dismiss in

part and dismiss this portion of the appeal. *

The waiver provision, however, only waived

McAllister’s right to appeal his sentence. Although McAllister

does not assert any errors related to his guilty plea or

conviction, counsel correctly notes that McAllister’s appellate

waiver does not preclude our review pursuant to Anders. In

accordance with Anders, we have reviewed the entire record and

have found no unwaived and potentially meritorious issues for

review. We therefore deny the Government’s motion to dismiss in

part and affirm McAllister’s conviction.

This court requires that counsel inform McAllister, in

writing, of his right to petition the Supreme Court of the

United States for further review. If McAllister requests that a

petition be filed, but counsel believes that such a petition

*
In any event, we would find that the district court did
not abuse its discretion in denying McAllister’s motion for a
continuance of the sentencing hearing. See United States v.
Midgett, 488 F.3d 288, 297 (4th Cir. 2007) (stating standard of
review). McAllister sought the continuance primarily to await
pending legislation. See Fair Sentencing Act of 2010 (FSA),
Pub. L. No. 111-220, 124 Stat. 2372. Although the FSA increased
the amounts of crack cocaine that trigger statutory mandatory
minimum sentences in § 841, the FSA did not expressly provide
that those amendments apply retroactively. Thus, despite the
enactment of the FSA, the district court at sentencing had to
apply the penalties in effect in 2009 when McAllister committed
the instant offense. See 1 U.S.C. § 109 (2006).

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would be frivolous, counsel may move in this court for leave to

withdraw from representation. Counsel’s motion must state that

a copy thereof was served on McAllister. We dispense with oral

argument because the facts and legal conclusions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART