UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4788
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIC SINCLAIR ERVIN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-01035-RBH-1)
Submitted: April 18, 2011 Decided: April 27, 2011
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathy Price Elmore, ORR ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominic Sinclair Ervin pled guilty pursuant to a
written plea agreement to using, carrying, and possessing a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A) (2006). Pursuant to Fed. R. Civ. P.
11(c)(1)(C), the parties stipulated to a ten-year sentence,
which Ervin received. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
indicating that there are no meritorious issues for appeal, but
questioning whether Ervin’s appellate waiver in his plea
agreement is enforceable and whether the district court fully
complied with Rule 11 in accepting Ervin’s guilty plea. Ervin
has filed a pro se supplemental brief. The Government has
elected not to file a response. We affirm.
Counsel first argues Ervin’s appellate waiver in his
plea agreement is not enforceable. The Government, however,
has not filed a responsive brief invoking the appeal waiver or
moved to dismiss this appeal. Accordingly, the Government has
waived reliance on the waiver, and the court will perform its
required Anders review. See United States v. Poindexter, 492
F.3d 263, 271 (4th Cir. 2007) (noting that, if the Government
does nothing in response to an Anders brief in a case where the
appellant has waived his right to appeal, the court will perform
its required Anders review); see also United States v. Metzger,
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3 F.3d 756, 757-58 (4th Cir. 1993) (holding that the
Government’s failure to assert an appeal waiver as a bar to the
appeal constitutes a waiver of reliance on the appeal waiver).
Where the defendant did not move in the district court
to withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525-26 (4th Cir. 2002). “To establish plain error, [Ervin]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (citation
omitted). Even if Ervin satisfies these requirements, the court
retains discretion to correct the error, which it should not
exercise unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Id.
(internal quotation marks and citation omitted). We have
reviewed the transcript of the Rule 11 hearing, and we conclude
that the district court complied with the Rule’s mandates.
Moreover, the district court ensured that Ervin’s plea was
knowing, voluntary, and supported by an adequate factual basis.
In accordance with Anders, we have reviewed the entire
record in this case and Ervin’s pro se supplemental brief and
conclude there are no meritorious issues for appeal. We
therefore affirm the judgment of the district court. We further
deny Ervin’s motion to appoint counsel as moot; grant in part
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his motion to seal with respect to the presentence report; and
deny in part his motion to seal with respect to the remaining
part of the record and the Anders brief. This court requires
that counsel inform Ervin, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Ervin 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
Ervin. 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
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