UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4850
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY MINCEY,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00210-RJC-1)
Submitted: January 31, 2011 Decided: February 16, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Anthony Mincey
pled guilty to two counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) (2006) (Counts 2 and 4),
and bank fraud, in violation of 18 U.S.C. § 1344 (2006) (Count
3). The district court sentenced Mincey to an aggregate term of
sixty months of imprisonment, thirty-six months on Count Three
to run consecutive to concurrent sentences of twenty-four months
on each of Counts Two and Four. This appeal followed.
On appeal, Mincey’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious grounds for appeal, but questioning whether
the district court abused its discretion by imposing a sentence
within an admittedly correct Guidelines range. Mincey did not
file a pro se supplemental brief, although informed of his right
to do so. This court sought supplemental briefing from the
parties on a sentencing issue. In its briefs, the Government
now asserts that based on the appeal waiver in Mincey’s plea
agreement, this court should dismiss the appeal.
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
totality of the circumstances, including the experience and
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conduct of the accused, as well as 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 a
defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is knowing and voluntary, and thus
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). 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). This court
will enforce a valid waiver so long as “the issue being appealed
is within the scope of the waiver.” Id.
Mincey’s plea agreement contained a broad waiver of
his right to challenge his conviction and sentence on appeal,
except for claims of prosecutorial misconduct or ineffective
assistance of counsel. On appeal, Mincey does not challenge the
voluntariness of his waiver, nor does the record support such a
challenge. At the Rule 11 hearing, the Government specifically
highlighted the appeal waiver in its summary of the plea
agreement, and the magistrate judge verified that Mincey was
aware of the waiver. Mincey, then thirty-seven with a twelfth-
grade education, persisted in his desire to plead guilty.
Accordingly, because Mincey knowingly and voluntarily entered
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into the waiver and the Government invoked its enforcement, we
dismiss Mincey’s appeal as to the claims raised in the Anders
brief and supplemental brief, which are clearly within the
waiver’s scope.
In accordance with the requirements of Anders, we have
examined the entire record and have found no unwaived and
meritorious issues. Therefore we affirm the district court’s
judgment in part. This court requires that counsel inform
Mincey in writing of his right to petition the Supreme Court of
the United States for further review. If Mincey requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Mincey. 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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