UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNIE RAY COX, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:13-cr-00070-D-1)
Submitted: September 25, 2014 Decided: September 29, 2014
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.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:
Donnie Ray Cox, Jr., pleaded guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute and distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 (2012), and was sentenced to 228
months’ imprisonment. On appeal, Cox’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
finding no meritorious grounds for appeal, but questioning the
reasonableness of Cox’s sentence. Cox was advised of his right
to file a pro se supplemental brief but did not file such a
brief. The Government has moved to dismiss the appeal based on
the appellate waiver provision in the plea agreement. We affirm
in part and dismiss in part.
We review de novo the validity of an appeal waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013). “We generally will enforce a
waiver . . . if the record establishes that the waiver is valid
and that the issue being appealed is within the scope of the
waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012) (internal quotation marks and alteration omitted). A
defendant’s waiver is valid if he agreed to it “knowingly and
intelligently.” United States v. Manigan, 592 F.3d 621, 627
(4th Cir. 2010). Our review of the record leads us to conclude
that Cox knowingly and voluntarily waived the right to appeal
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his sentence, reserving the right to appeal only a sentence in
excess of the Guidelines range established at sentencing.
Because the district court imposed a below-Guidelines sentence,
we grant in part the Government’s motion to dismiss and dismiss
the appeal of Cox’s sentence.
Although the waiver provision in the plea agreement
precludes our review of Cox’s sentence, the waiver does not
preclude our review of any errors in Cox’s conviction that may
be revealed by our review pursuant to Anders. Pursuant to
Anders, we have reviewed the entire record for meritorious,
nonwaived issues and have found none. We therefore affirm in
part and dismiss in part. This court requires that counsel
inform Cox, in writing, of his right to petition the Supreme
Court of the United State for further review. If Cox requests
that such a petition be filed, but counsel believes that the
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 of the motion was served on Cox. 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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