UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4386
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
UNDER SEAL,
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-00058-JPB-DJJ-1)
Submitted: February 10, 2011 Decided: February 16, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Kirk H. Bottner, BOTTNER AND SKILLMAN, ATTORNEYS AT LAW, Charles
Town, West Virginia, for Appellant. William J. Ihlenfeld, II,
United States Attorney, Thomas O. Mucklow, Assistant United
States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant pled guilty pursuant to a plea agreement to
possession with intent to distribute heroin, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2006), and was sentenced to
130 months in prison. Counsel has filed a timely appeal,
pursuant to Anders v. California, 386 U.S. 738 (1967). In the
Anders brief, counsel states that there are no meritorious
grounds for appeal, but explains that Appellant wishes to
challenge his sentence. Appellant filed a pro se supplemental
brief, also raising several issues pertaining to his sentence.
The Government has filed a responsive brief, asserting that
Appellant’s challenges are barred by his plea agreement’s
appellate waiver.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Appellant
knowingly and voluntarily waived his right to appeal his
sentence on any ground whatsoever, including the manner in which
the sentence was determined, so long as it was within the
statutory maximum. Because neither counsel nor Appellant raise
any issues outside the waiver’s scope, we enforce the
agreement’s terms and dismiss the appeal as to Appellant’s
sentence. Since the appellate waiver pertains only to
Appellant’s sentence, however, we have reviewed his conviction
pursuant to our obligations under Anders. Having done so, we
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find no meritorious issues for appeal. Accordingly, although we
dismiss this appeal to the extent it seeks review of Appellant’s
sentence, we affirm as to Appellant’s conviction.
This court requires that counsel inform Appellant, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Appellant 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 Appellant. 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 in the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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