UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4372
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE ROGERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-cr-00153-BR-1)
Submitted: January 28, 2106 Decided: February 16, 2016
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
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Unpublished opinions are not binding precedent in this circuit.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:
Andre Rogers pled guilty, pursuant to a written plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a) (2012). The
district court imposed a below Guidelines sentence of 90 months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that there
are no meritorious issues that are reviewable in light of
Rogers’ appellate waiver, but arguing that the district court
clearly erred in its calculation of Rogers’ Guidelines range at
sentencing. The Government has filed a motion to dismiss the
appeal on the ground that Rogers knowingly and intelligently
waived the right to appeal his conviction and sentence. Rogers’
counsel opposes the Government’s motion as premature. We grant
the Government’s motion to dismiss in part and dismiss Rogers’
appeal of his sentence, and we deny the motion in part and
affirm Rogers’ conviction.
We review de novo a defendant’s waiver of appellate rights.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). A
defendant may waive the right to appeal as part of a valid plea
agreement. United States v. Manigan, 592 F.3d 621, 627 (4th
Cir. 2010). In assessing whether an appellate waiver bars a
defendant’s appeal, we analyze both the validity and the scope
of the waiver. United States v. Blick, 408 F.3d 162, 171 n.10
2
(4th Cir. 2005). To determine whether Rogers knowingly and
intelligently waived his appellate rights, we look “to the
totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks omitted). “Generally, if a
district court questions a defendant regarding the waiver of
appellate rights during the [Fed. R. Crim. P.] 11 colloquy and
the record indicates that the defendant understood the full
significance of the waiver, the waiver is valid.” Copeland, 707
F.3d at 528 (internal quotation marks omitted).
We will enforce a valid waiver so long as “the issue
appealed is within the scope of the waiver.” Copeland, 707 F.3d
at 528. We conclude that Rogers’ challenge to the calculation
of his Guidelines range falls within the scope of the appellate
waiver provision in the plea agreement. Therefore, we grant the
Government’s motion to dismiss in part and dismiss Rogers’
appeal of his sentence.
The appellate waiver does not, however, preclude our review
of a challenge to the voluntariness of Rogers’ plea. See United
States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). We
have reviewed the plea colloquy for plain error and conclude
that any errors or omissions in the plea colloquy did not affect
3
Rogers’ substantial rights. See United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002) (stating standard of review); see
also Henderson v. United States, 133 S. Ct. 1121 (2013)
(detailing plain error standard). We therefore deny in part the
Government’s motion to dismiss and affirm Rogers’ conviction.
In accordance with Anders, we have reviewed the entire
record and have found no unwaived potentially meritorious
grounds for appeal. This court requires that counsel inform
Rogers, in writing, of the right to petition the Supreme Court
of the United States for further review. If Rogers 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 Rogers. 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 IN PART;
AFFIRMED IN PART
4