UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4272
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARRY LAVONNE BERRY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00247-FL-1)
Submitted: September 12, 2011 Decided: September 21, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant. Edward D. Gray, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Berry pled guilty pursuant to a plea agreement
to armed bank robbery and aiding and abetting, in violation of
18 U.S.C.A. §§ 2, 2113 (West 2000 & Supp. 2011); using a firearm
during a crime of violence and aiding and abetting, in violation
of 18 U.S.C.A. §§ 2, 924(c)(1)(A) (West 2000 & Supp. 2011);
interference with commerce by robbery and aiding and abetting,
in violation of 18 U.S.C. §§ 2, 1951 (2006); and being a felon
in possession of a firearm, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924 (West 2000 & Supp. 2011), and was sentenced to
302 months in prison. Counsel has filed an appeal pursuant to
Anders v. California, 386 U.S. 738 (1967).
In the Anders brief, counsel concedes that the
appellate waiver contained in Berry’s plea agreement precludes
his appeal as to his sentence, but nonetheless suggests that the
district court erred when it calculated Berry’s Guidelines
ranges. Berry has filed a pro se supplemental brief, as well as
a supplement to his pro se supplemental brief, in which he
challenges the district court’s decision to sentence him as an
armed career criminal under the Armed Career Criminal Act, 18
U.S.C.A. § 924(e) (West 2000 & Supp. 2011). The Government
moves to dismiss the appeal as to Berry’s sentence based on the
appellate waiver in Berry’s plea agreement. We affirm in part
and dismiss in part.
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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 Berry
voluntarily and knowingly waived his right to appeal his
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 Berry’s plea
agreement did not waive: (1) any challenges he may have if his
sentence were above the Guidelines range calculated at
sentencing; (2) certain ineffective assistance of counsel or
prosecutorial misconduct claims; or (3) any claims Berry may
have pertaining to his conviction. Berry’s sentence is within
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the Guidelines ranges calculated at sentencing and he raises no
claims that fall outside the scope of his appellate waiver.
Thus, we grant the Government’s motion to dismiss the
appeal as to Berry’s sentence. 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 part. This court requires that counsel
inform Berry, in writing, of his right to petition the Supreme
Court of the United States for further review. If Berry
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 Berry. 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 the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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