UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4786
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEMP EARL MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:12-cr-00550-CCB-1)
Submitted: April 17, 2014 Decided: April 21, 2014
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ron Earnest, LAW OFFICE OF RON EARNEST, Riverdale, Maryland, for
Appellant. David I. Sharfstein, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kemp Earl Mitchell pled guilty, pursuant to a written
plea agreement, to conspiracy to distribute and possess with
intent to distribute heroin, 21 U.S.C. § 846 (2012). He
received a below-Guidelines sentence of 144 months’
imprisonment. On appeal, Mitchell’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal but questioning
the adequacy of the guilty plea colloquy and the propriety of
Mitchell’s sentence. Mitchell has filed a pro se supplemental
brief challenging his sentence under Alleyne v. United States,
133 S. Ct. 2151 (2013), and the adequacy of the plea colloquy.
He also alleges appellate counsel has rendered ineffective
assistance by filing an Anders brief. The Government has moved
to dismiss Mitchell’s appeal of his sentence based on the
appellate waiver provision in the plea agreement. We grant the
Government’s motion and dismiss Mitchell’s appeal of his
sentence, and we affirm Mitchell’s conviction.
We review a defendant’s waiver of appellate rights de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya–Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
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omitted); see United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (providing standard). Generally, if the district
court fully questions the defendant about the waiver during the
Fed. R. Crim. P. 11 plea colloquy, the waiver is valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). We will enforce a valid waiver so long as “the
issue being appealed is within the scope of the waiver.” Blick,
408 F.3d at 168.
Our review of the record leads us to conclude that
Mitchell’s waiver of appellate rights was knowing and
intelligent. Turning to the scope of the waiver, we conclude
that the sentencing issues Mitchell raises in the Anders brief
and the pro se supplemental brief fall within the scope of the
appellate waiver provision. Thus, we grant the Government’s
motion to dismiss Mitchell’s appeal of his sentence and dismiss
this portion of the appeal.
The waiver provision does not, however, preclude our
review of Mitchell’s conviction pursuant to Anders. We have
reviewed the plea colloquy for plain error and have found none.
See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002)
(providing standard); see also United States v. Olano, 507 U.S.
725, 732 (1993) (detailing plain error standard).
The waiver provision also does not preclude our review
of Mitchell’s claim that appellate counsel rendered ineffective
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assistance by failing to file a merits brief. Such claims,
however, are not generally cognizable on direct appeal. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because
the record does not establish that appellate counsel was
ineffective, we will not review Mitchell’s claim at this
juncture. United States v. Martinez, 136 F.3d 972, 979 (4th
Cir. 1998) (providing standard).
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. We therefore affirm Mitchell’s convictions.
This court requires that counsel inform Mitchell, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Mitchell requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Mitchell. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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