UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4881
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH C. PHIPPS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00433-HEH-1)
Submitted: March 31, 2011 Decided: April 5, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Stephen P. Hanna, Richmond, Virginia, for Appellant. Peter
Sinclair Duffey, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth C. Phipps pled guilty to conspiracy to
distribute cocaine and possession of a firearm in furtherance of
a drug trafficking crime. The district court sentenced him to
180 months’ imprisonment — 120 months for the conspiracy
conviction and a consecutive sixty months on the firearm
offense. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
district court erred by sentencing Phipps to a consecutive term
on the firearm offense when the mandatory minimum sentence on
the drug charge was sufficient to accomplish the goals of
sentencing. Phipps was informed of his right to file a pro se
supplemental brief but has not done so. The Government has
moved to dismiss the appeal based upon Phipps’ waiver of his
appellate rights. We affirm in part and dismiss in part.
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). 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. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991). The question of whether a
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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).
Our review of the record leads us to conclude that
Phipps knowingly and voluntarily waived the right to appeal his
sentence. Moreover, the issue raised on appeal is a sentencing
issue, which falls within the scope of the waiver. We therefore
grant, in part, the Government’s motion to dismiss and dismiss
this portion of the appeal.
Although the waiver provision in the plea agreement
precludes our review of the sentence, the waiver does not
preclude our review of any errors in Phipps’ conviction that may
be revealed by our review pursuant to Anders. Our review of the
transcript of the plea colloquy convinces us that the district
court fully complied with the mandates of Rule 11 in accepting
Phipps’ guilty plea. The district court ensured that the plea
was entered knowingly and voluntarily and was supported by an
independent factual basis. See United States v. DeFusco, 949
F.2d 114, 116, 119-20 (4th Cir. 1991). Thus, we deny, in part,
the Government’s motion to dismiss and we affirm the conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the waiver. We therefore affirm Phipps’ conviction
and dismiss the appeal of his sentence. We deny counsel’s
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motion to withdraw. This court requires that counsel inform his
client, in writing, of the right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may renew his motion
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
the client. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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