United States v. Powell

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4027

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MICHAEL POWELL,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cr-00370-JFM-1)

Submitted: December 21, 2010 Decided: January 3, 2011

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

Affirmed in part; dismissed in part by unpublished per curiam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

Richard B. Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Joshua L. Kaul, Michael Joseph Leotta, Charles
Joseph Peters, Sr., Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Powell appeals his conviction and 292-month

sentence of imprisonment following his guilty plea to one count

of conspiracy to distribute fifty grams or more of cocaine base,

in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), 846 (2006).

Powell’s attorney filed his appellate brief pursuant to

Anders v. California, 386 U.S. 738 (1967), questioning whether

the district court erred in using a 100:1 crack cocaine to

powder cocaine ratio to sentence Powell, but concluding that

Powell waived appellate review of this issue. Powell filed a

pro se supplemental brief claiming that he had no notice of the

career offender sentence, that one of his prior convictions did

not qualify as a crime of violence within the meaning of U.S.

Sentencing Guideline Manual (“USSG”) § 4B1.2 (2009), and that

the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372

(2010) reduced the mandatory minimum sentence that he faced. *

The Government moves to dismiss the appeal on the basis of the

waiver of appellate rights contained in Powell’s plea agreement.

*
Powell was not sentenced using the career offender level
of thirty-four under USSG § 4B1.1 because the drug weight
attributable to him under USSG § 2D1.1(c)(1) resulted in an
adjusted offense level of thirty-five. Powell was, however,
sentenced using a career offender criminal history category of
VI, rather than a category V where his criminal history points
placed him.

2
Powell’s counsel does not oppose the motion. We dismiss the

appeal in part and affirm in part.

We first conclude that Powell has waived his right to

appeal his sentence. 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). To determine

whether a waiver is knowing and intelligent, this court examines

the background, experience, and conduct of the defendant.

United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.

1995). 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 the 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).

Our review of the record leads us to conclude that

Powell knowingly and voluntarily waived the right to appeal any

sentence imposed within the applicable guideline range using an

adjusted offense level of thirty-five. The sentencing issues

that Powell raises on appeal fall within the scope of this

3
waiver. We therefore grant the Government’s motion to dismiss

in part and dismiss this portion of the appeal.

Although the appellate waiver precludes our review of

the sentence, it does not preclude our review of any errors in

Powell’s conviction that may be revealed pursuant to the review

required by Anders. Therefore, we deny the motion to dismiss in

part. We have examined the entire record in accordance with

Anders, including the transcript of the Rule 11 hearing, and

have found no meritorious issues for appeal. Accordingly, we

affirm Powell’s conviction.

This court requires that counsel inform Powell, in

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

review. If Powell 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 Powell. 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