UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CEDRIC ANTOINE MCKENITH, a/k/a Antoine Cedric McKenith,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:14-cr-00026-D-1)
Submitted: September 30, 2015 Decided: October 8, 2015
Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Cedric Antoine McKenith appeals the 180-month sentence
imposed by the district court after he pled guilty to selling a
firearm and ammunition to a felon, in violation of 18 U.S.C.
§ 922(d)(1) (2012), and possessing a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2012). McKenith’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that he has found no
meritorious grounds for appeal but raising as a potential issue
the substantive reasonableness of McKenith’s sentence. McKenith
has filed a pro se supplemental brief arguing that the district
court erred in determining his relevant conduct at sentencing
and in applying the Sentencing Guidelines.
The Government has moved to dismiss pursuant to the
appellate waiver in McKenith’s plea agreement. McKenith argues
that the waiver is invalid and does not apply to the claims
asserted in his pro se brief. We grant the Government’s motion
to dismiss and dismiss the appeal.
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2012). United States
v. Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135
S. Ct. 1579 (2015). A waiver will preclude an appeal of “a
specific issue if . . . the waiver is valid and the issue being
appealed is within the scope of the waiver.” Id. Whether a
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defendant validly waived his right to appeal is a question of
law that we review de novo. United States v. Copeland, 707 F.3d
522, 528 (4th Cir. 2013).
Our review of the record leaves us with no doubt that
McKenith knowingly and voluntarily entered his guilty plea and
waived his appellate rights. Although McKenith argues that his
waiver is invalid because he was unaware of the facts the
district court would find at sentencing, the district court
fully explained the sentencing procedures and was not required
to make these determinations prior to accepting McKenith’s plea.
See United States v. Thornsbury, 670 F.3d 532, 538 (4th Cir.
2012) (holding that defendant, through his waiver, “assumed the
risk of unforeseen legal errors involving his sentence”).
Moreover, the sentencing claims asserted in counsel’s Anders
brief and McKenith’s pro se brief fall within the scope of
McKenith’s valid waiver. *
*
McKenith notes that his waiver reserved his right to
appeal from an above-Guidelines sentence and argues that his
sentence, which was within the Guidelines range calculated by
the district court, exceeded the Guidelines range that would
have resulted had his sentencing challenges been sustained.
However, McKenith’s appellate waiver only reserved “the right to
appeal from a sentence in excess of the applicable advisory
Guideline range that is established at sentencing” (Plea
Agreement (PACER No. 69) at 1-2), not the right to appeal from a
sentence in excess of the Guidelines range that McKenith
believes is applicable. Moreover, the waiver expressly stated
that it encompassed “any issues that relate to the establishment
of the advisory Guideline range.” (Id. at 1).
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Pursuant to Anders, we have reviewed the entire record for
any unwaived meritorious grounds for appeal and have found none.
Accordingly, we grant the Government’s motion to dismiss and
dismiss the appeal. This court requires that counsel inform
McKenith, in writing, of his right to petition the Supreme Court
of the United States for further review. If McKenith 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 McKenith. 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.
DISMISSED
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