UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4064
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONALD BARNARD NEAL, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:10-cr-00192-H-1)
Submitted: September 19, 2011 Decided: September 27, 2011
Before MOTZ, WYNN, and DIAZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Donald Barnard Neal, Jr., pled guilty, pursuant to a
written plea agreement, to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g) (2006). The district court
sentenced Neal to 120 months in prison. Neal now appeals. His
attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising one sentencing issue.
Neal was advised of his right to file a pro se supplemental
brief, but has not filed such a brief. The Government moves to
dismiss the appeal of the sentence on the basis of a waiver-of-
appellate-rights provision in Neal’s plea agreement. We dismiss
in part and affirm in part.
A defendant may waive the right to appeal if the
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). The question of whether a defendant validly waived
his right to appeal is a question of law that we review de novo.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
After reviewing the record, we conclude that Neal
knowingly and voluntarily waived the right to appeal his
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sentence, with the exception of a claim that his sentence was
above the advisory Guidelines range. We note that the waiver
provision was set forth in a separate paragraph of the plea
agreement, which Neal signed. Further, he was fully questioned
at the properly conducted Rule 11 hearing about the waiver.
Accordingly, the waiver is valid. Neal’s claim on appeal that
his base offense level was improperly calculated falls within
the scope of the waiver. * We accordingly grant the Government’s
motion to dismiss Neal’s appeal of his sentence.
With respect to Neal’s conviction, our review of the
transcript of the plea colloquy convinces us that the court
complied with the mandates of Fed. R. Crim. P. 11 in accepting
Jones’ guilty plea. The court advised and questioned Neal as
required by the Rule and determined that the plea was voluntary,
knowing, and supported by an independent factual basis. See
United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir.
1991). We therefore affirm the conviction.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We affirm
*
Neal’s total offense level was 29, and his criminal
history category was V, resulting in a Guidelines range of 140-
175 months. However, Neal was statutorily subject to a maximum
term of 120 months, see 18 U.S.C. § 924(a)(2) (2006), and his
Guidelines range was 120 months. See U.S. Sentencing Guidelines
Manual § 5G1.1(a) (2010).
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Neal’s conviction and dismiss his appeal of his sentence. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client 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 was served on the client. 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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