UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5271
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEROME RICO EVANS, a/k/a Wank,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00013-F-1)
Submitted: August 8, 2011 Decided: September 7, 2011
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Jerome Rico Evans pled guilty pursuant to a plea
agreement to possession with intent to distribute heroin and
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006), and was
sentenced to 170 months in prison. Counsel has filed an appeal
pursuant to Anders v. California, 386 U.S. 738 (1967). In the
Anders brief, counsel states that there are no meritorious
grounds for appeal, but nonetheless asserts that the district
court imposed an unreasonable sentence because it failed to
provide an individualized assessment of Evans’ situation before
imposing sentence. Evans filed a pro se supplemental brief,
asserting that the: (i) Fair Sentencing Act, Pub. L. No. 111-
220, 124 Stat. 2372 (“FSA”) should retroactively apply to his
sentence; (ii) appellate waiver in his plea agreement does not
bar an FSA-based challenge to his sentence, and (iii) district
court erred when it classified him as a career offender. The
Government moves to dismiss the appeal, asserting that Evans
waived his right to appeal his sentence in his plea agreement.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. See United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent
review of the record supports the conclusion that Evans
voluntarily and knowingly waived his right to appeal his
2
sentence. Thus, we conclude that the waiver is valid and
enforceable.
However, even a valid waiver does not waive all
appellate claims. Specifically, a valid appeal waiver does not
preclude a challenge to a sentence on the ground that it exceeds
the statutory maximum or is based on a constitutionally
impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
guilty plea. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993). Moreover, the appellate waiver in Evans’ plea
agreement did not waive any claims Evans may have pertaining to
his conviction or to his sentence on the grounds of
prosecutorial misconduct or ineffective assistance of counsel.
Evans raises no claims that fall outside the scope of his
appellate waiver. Thus, we grant the Government’s motion to
dismiss in part and dismiss the claims raised by Evans in his
Anders and pro se supplemental briefs.
Although we are charged under Anders with reviewing
the record for unwaived error, we have reviewed the record in
this case and have found no unwaived and meritorious issues for
appeal. We therefore dismiss the appeal in part and affirm in
3
part. This court requires that counsel inform Evans, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Evans 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 Evans. 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
4