UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4763
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEPHEN BRENT HIMES,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:10-cr-00026-FL-1)
Submitted: February 22, 2011 Decided: March 17, 2011
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam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. Tobin Webb Lathan, OFFICE OF THE UNITED STATES
ATTORNEY, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Brent Himes pleaded guilty, pursuant to a
written plea agreement, to armed bank robbery, in violation of
18 U.S.C. § 2113(a), (d) (2006). He was sentenced to
ninety-five months’ imprisonment. On appeal, Himes’ counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), in which he states there are no meritorious issues for
appeal, but questions whether the district court erred in giving
adequate consideration to the impending recency amendment to
U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.1 (2009).
Himes has not filed a pro se supplemental brief. The Government
has moved to dismiss the appeal of Himes’ sentence based upon a
waiver of appellate rights in his plea agreement.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude appeal of a
specific issue if the waiver is valid and the issue is within
the scope of the waiver. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). The question of whether a defendant
validly waived his right to appeal is a question of law that
this court reviews de novo. Manigan, 592 F.3d at 626.
An appellate waiver is valid if the defendant
knowingly and intelligently agreed to waive the right to appeal.
Id. at 627. To determine whether a waiver is knowing and
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intelligent, this court examines the totality of the
circumstances. Id. 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
both valid and enforceable. Id.; United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). Here, the magistrate judge
complied with the requirements of Fed. R. Crim. P. 11. The
magistrate judge ensured that Himes had read the plea agreement,
that counsel explained it to him, and that he understood the
consequences of the waiver of appellate rights set forth in the
agreement.
Accordingly, we grant the Government’s motion to
dismiss Himes’ appeal of his sentence and dismiss the appeal in
part. In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal that are not encompassed by the appeal waiver. We
therefore affirm Himes’ conviction.
This court requires that counsel inform Himes, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Himes 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 Himes. We dispense with
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oral argument because the facts and legal contentions are
adequately presented in the material before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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