UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4036
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DAWSON PIERCE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Fox,
Senior District Judge. (2:09-cr-00011-F-1)
Submitted: February 1, 2011 Decided: March 14, 2011
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, John Dawson Pierce pled
guilty to operating a still without a license, in violation of
26 U.S.C. § 5601(a)(4) (2006) (Count Two), and possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2006)
(Count Five). The district court sentenced Pierce to thirty
months of imprisonment. Pierce’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 procedurally erred in failing
adequately to address Pierce’s motion for a variance sentence.
Pierce did not file a pro se supplemental brief, although
informed of his right to do so. The Government has moved to
dismiss Pierce’s appeal of his sentence based on the appellate
waiver in his plea agreement. In response, Pierce contends that
the Government’s motion is premature because this court has not
yet conducted its review of the record, as required by Anders.
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
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
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agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks omitted).
Whether a defendant validly waived his right to appeal
is a question of law that this court reviews de novo. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Generally,
if the district court fully questions a defendant regarding the
waiver of his right to appeal during the Fed. R. Crim. P. 11
colloquy, the waiver is valid and enforceable. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We will enforce a
valid waiver when “the issue being appealed is within the scope
of the waiver.” Id.
Here, Pierce’s appeal waiver expressly precluded him
from appealing any sentence within the advisory Guideline range
established at sentencing. Because the sentence imposed was
within that range, any challenge to the sentence, including the
issue raised in Pierce’s Anders brief, falls within the scope of
the waiver. Moreover, Pierce does not challenge the
voluntariness of his waiver. Accordingly, we conclude that the
waiver is enforceable and grant the Government’s motion to
dismiss his appeal of the sentence.
The waiver, however, does not preclude our review of
the conviction. We have examined the entire record in
accordance with the requirements of Anders and have found no
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unwaived and meritorious issues for appeal. Therefore, we
affirm Pierce’s conviction.
This court requires that counsel inform Pierce in
writing of his right to petition the Supreme Court of the United
States for further review. If Pierce 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 Pierce. 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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