United States v. Michael Fluharty

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5298

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL PAUL FLUHARTY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00072-H-3)

Submitted: July 28, 2011 Decided: August 1, 2011

Before SHEDD, AGEE, and DIAZ, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam
opinion.

J. Rafael Rodriguez, LAW OFFICES OF J. RAFAEL RODRIGUEZ, Miami,
Florida, 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Unpublished opinions are not binding precedent in this circuit.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:

Michael Paul Fluharty pled guilty, pursuant to a

written plea agreement, to conspiracy to commit mail and wire

fraud, in violation of 18 U.S.C. § 1349 (2006), and he was

sentenced to six months’ imprisonment. Appellate counsel filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

in which he asserts there are no meritorious issues for appeal

but questions whether the magistrate judge complied with the

requirements of Fed. R. Crim. P. 11 and whether the sentence is

reasonable. ∗ Fluharty was notified of his right to file a pro se

supplemental brief, but he has not done so. The Government

moves to dismiss the appeal, asserting Fluharty waived his right

to appeal the sentence in the plea agreement.

Upon review of the plea agreement and the transcript

of the Rule 11 hearing, we conclude that Fluharty knowingly and

voluntarily waived his right to appeal his sentence. Further,

because counsel did not raise any sentencing issues outside the

scope of the waiver, and we discern none, the terms of the

agreement will be enforced. Accordingly, we grant the

Government’s motion to dismiss as to Fluharty’s sentence.

However, because the appeal waiver pertains only to Fluharty’s

∗
The Rule 11 hearing was conducted by a magistrate judge
with Fluharty’s written consent. See 28 U.S.C.A. § 636 (West
2006 & Supp. 2011).

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sentence, we have reviewed the Rule 11 hearing and conclude that

the magistrate judge committed no reversible error. We have

reviewed Fluharty’s conviction pursuant to our obligation under

Anders. As we have found no meritorious issues for appeal, we

affirm Fluharty’s conviction.

This court requires that 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 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 in the decisional process.

DISMISSED IN PART,
AFFIRMED IN PART

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