UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4178
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLINTON GREEN, a/k/a Clinton Greene,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:09-cr-00041-1)
Submitted: December 20, 2010 Decided: February 7, 2011
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Andrew J. Katz, THE KATZ WORKING FAMILIES’ LAW FIRM, L.C.,
Charleston, West Virginia, for Appellant. Monica Lynn Dillon,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clinton Green pled guilty, pursuant to a written plea
agreement, to one count of distributing crack cocaine, 21 U.S.C.
§§ 841(a)(1) (2006), and was sentenced to a 27-month term of
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
opinion, there are no meritorious grounds for appeal but raising
three potential issues: (1) whether the district court erred in
denying Green’s motion to suppress; (2) whether the district
court erred in denying Green’s motion to dismiss the superseding
indictment; and (3) whether Green should have received a lesser
sentence. Although informed of his right to file a supplemental
pro se brief, Green has not done so. The Government has moved
to dismiss the appeal based on a waiver provision in Green’s
plea agreement. We affirm in part and dismiss in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant at his Fed. R. Crim. P. 11
proceeding regarding the waiver of his right to appeal, 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). Whether a defendant
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validly waives his right to appeal is a question of law that we
review de novo. Blick, 408 F.3d at 168.
After reviewing the record, we conclude that Green
knowingly and voluntarily waived his right to appeal his
sentence, retaining only his right to appeal a sentence beyond
the statutory maximum of twenty years. Green was sentenced to
less than the statutory maximum and, therefore, he retained no
appellate rights with respect to his sentence. Accordingly, we
grant, in part, the Government’s motion to dismiss and dismiss
Green’s appeal to the extent that it seeks appellate review of
his sentence.
The express terms of the waiver provision, however, do
not prevent our review of any errors in Green’s conviction. To
the extent that Green challenges the denial of his motion to
suppress and his motion to dismiss the indictment, we find such
claims waived. When a defendant enters a voluntary plea of
guilty, he waives his right to challenge antecedent,
nonjurisdictional errors not logically inconsistent with the
establishment of guilt. See Menna v. New York, 423 U.S. 61, 62-
63 (1975); Tollett v. Henderson, 411 U.S. 258, 267 (1973); see
also United States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990)
(“[D]irect review of an adverse ruling on a pre-trial motion is
available only if the defendant expressly preserves that right
by entering a conditional guilty plea.”). Because our review of
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the Fed. R. Crim. P. 11 colloquy reveals that Green’s guilty
plea was both knowing and voluntary, he has waived appellate
review of these issues.
After reviewing the entire record in accordance with
Anders, we conclude that there are no issues not covered by the
waiver that are meritorious. Thus, we deny, in part, the
Government’s motion to dismiss and affirm Green’s conviction.
This court requires that counsel inform his client, in
writing, of his 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 of the motion was served on his 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.
DISMISSED IN PART;
AFFIRMED IN PART
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