UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4601
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JESSE DEMETRIUS HINTON,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00385-NCT-1)
Submitted: January 31, 2011 Decided: February 25, 2011
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Lisa Blue Boggs, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Demetrius Hinton appeals from his convictions
and sentence for possession with intent to distribute cocaine
base and possession of a firearm by a convicted felon. On
appeal, Hinton’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious grounds for appeal, but requesting a
reduction in sentence in light of the Fair Sentencing Act of
2010. Hinton was informed of his right to file a pro se
supplemental brief but has not done so. The Government has
filed a motion to dismiss the appeal on the basis of the
appellate waiver provision in Hinton’s plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo, and we will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is valid if the defendant’s agreement to the waiver was knowing
and intelligent. Id. at 169. To determine whether a waiver is
knowing and intelligent, we examine “the totality of the
circumstances, including the experience and conduct of the
accused, as well as the accused’s educational background and
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familiarity with the terms of the plea agreement.” United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks and citation omitted). Generally, if a district
court fully questions a defendant regarding the waiver of
appellate rights during the Federal Rule of Criminal Procedure
11 colloquy, and the record indicates that the defendant
understood the full significance of the waiver and was not
denied effective assistance of counsel, the waiver is valid.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
A review of the Rule 11 hearing transcript confirms
that Hinton knowingly and intelligently waived his right to
appeal. In his plea agreement, Hinton explicitly waived the
right to challenge his sentence on appeal, reserving only the
right to appeal based upon grounds of ineffective assistance of
counsel, prosecutorial misconduct, a sentence in excess of the
statutory maximum, and a sentence based on an unconstitutional
factor. Hinton confirmed at his Rule 11 hearing that he read
and understood the plea agreement. The district court conducted
the colloquy required under Rule 11, ensuring that Hinton
understood the charges and potential penalties, and that Hinton
was competent to enter the plea. We therefore conclude that
Hinton knowingly and intelligently waived the right to appeal
his sentence. Because Hinton explicitly challenges only his
sentence on appeal, we further conclude that Hinton’s appeal
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falls squarely within the scope of the waiver provision, so we
grant the motion to dismiss as to Hinton’s sentence.
The waiver provision, however, did not waive Hinton’s
right to appeal his convictions. Defense counsel does not
assert any errors related to Hinton’s guilty plea or
convictions. Counsel correctly notes in the response to the
motion to dismiss, however, that Hinton’s appeal waiver does not
preclude our review of his convictions pursuant to Anders. In
accordance with Anders, we have thoroughly examined the entire
record for any potentially meritorious issues not covered by the
waiver and have found none. Accordingly, we deny the
Government’s motion to dismiss as to Hinton’s convictions, and
we affirm those convictions.
In sum, the Government’s motion to dismiss is granted
in part and denied in part, Hinton’s appeal of his sentence is
dismissed, and his convictions are affirmed. This court
requires that counsel inform Hinton, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Hinton 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 Hinton. We dispense with oral argument because
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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
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