UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5230
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE VAUGHN WHITE, a/k/a LayLow,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00052-IMK-JSK-1)
Submitted: June 21, 2011 Decided: June 29, 2011
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Kumaraswamy Sivakumaran, STERLING LEGAL SERVICES, PLLC, Weston,
West Virginia, for Appellant. Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Vaughn White appeals from his conviction and
ninety-seven month sentence entered pursuant to his guilty plea
to one count of possessing with the intent to distribute five
grams or more of cocaine base and less than one hundred grams of
heroin, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B), (C)
(West 1999 & Supp. 2011). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that there
are no meritorious grounds for appeal but questioning whether
White knowingly and intelligently pleaded guilty, and whether
the court erred in sentencing White to ninety-seven months’
imprisonment. The Government filed a motion to dismiss the
appeal on the basis of the appellate waiver contained in White’s
plea agreement. White filed a pro se supplemental appeal,
arguing that the Government breached the plea agreement and the
district court erred in failing to address White’s objections to
the Presentence Investigation Report (“PSR”).
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). Our independent review of
the record supports the conclusion that White knowingly and
intelligently waived his right to appeal “any sentence imposed
using a base offense level of 37 or higher.” Because we
conclude that the waiver is valid and enforceable as to White’s
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challenges to his sentence, we grant the Government’s motion to
dismiss in part and dismiss White’s appeal of his sentence.
The language of White’s waiver does not encompass his
challenge to the validity of his guilty plea. Therefore, we
deny the motion to dismiss as to this claim. However, our
review convinces us that the claim lacks substantive merit.
Prior to accepting a guilty plea, a trial court must inform the
defendant of the nature of the charges to which the plea is
offered, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various right he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b). The court also must
determine whether there is a factual basis for the plea. Id.;
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).
The purpose of the Rule 11 colloquy is to ensure that the plea
of guilt is entered into knowingly and voluntarily. See United
States v. Vonn, 535 U.S. 55, 58 (2002). Our review of the
record reveals that the district court fully complied with the
requirements of Rule 11, and we conclude that White’s guilty
plea was knowing and voluntary. Further, we find no merit to
White’s pro se claims.
In accordance with Anders, we have reviewed the record
in this case and have found no unwaived and meritorious issues
for appeal. We accordingly affirm White’s conviction and
dismiss the appeal of his sentence. This court requires that
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counsel inform his client, in writing, of his 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 move 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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