UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4982
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAWAAD NASH, a/k/a Wad,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00039-FDW-2)
Submitted: September 27, 2011 Decided: October 6, 2011
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, P.C.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jawaad Nash pled guilty, pursuant to a written plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute one or more controlled substances, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and four counts
of conspiracy to commit robbery affecting interstate commerce,
in violation of 18 U.S.C. § 1951 (2006). Nash was sentenced to
330 months’ imprisonment.
On appeal, Nash’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that, in
light of Nash’s appeal waiver in the plea agreement, there are
no meritorious issues for appeal, but raising for the court’s
consideration the following two issues: (1) whether Nash’s
prior North Carolina convictions were “felony drug offenses”
that raised Nash’s statutory sentence and (2) whether the Fair
Sentencing Act (“FSA”) should be applied to his case. Nash
filed a pro se supplemental brief raising several sentencing
issues. In a notice to this court, the Government stated that
it does not waive enforcement of Nash’s appeal waiver. Nash’s
counsel subsequently filed a motion requesting this court apply
the holding in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc) and the sentencing provisions of the FSA. He
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also moved for an order directing briefing on the merits of the
appeal.
We review de novo the question of whether a defendant
has waived his right of appeal in connection with a plea
proceeding. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). Where the government seeks to enforce an appeal waiver,
as in this case, and the appellant does not contend that the
government is in breach of the plea agreement, a waiver will be
enforced if the record shows the waiver is valid and the
challenged issue falls within the scope of the waiver. Id.
A defendant may waive the right to appeal if that
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); United States v. Wessells, 936 F.2d 165, 167-68 (4th
Cir. 1991).
Our review of the record leads us to conclude that
Nash’s waiver of his right to appeal his convictions and
sentence was knowing and intelligent. In the signed plea
agreement, Nash agreed to “waive[] all such rights to contest
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the conviction except for: (1) claims of ineffective assistance
of counsel or (2) prosecutorial misconduct.” (Joint Appendix at
68). In addition, he acknowledged his right under 18 U.S.C.
§ 3742 to appeal his sentence and “waive[d] all rights conferred
by [Section 3742] or otherwise to appeal whatever sentence is
imposed with the two exceptions set forth above.” (Id.).
During the Rule 11 hearing, the appeal waiver provision was
summarized and Nash acknowledged under oath that he was waiving
his right to appeal his convictions and sentence. By virtue of
the appeal waiver, Nash has waived review of the sentencing
issues counsel raises in the Anders brief and the issues Nash
raises in his pro se supplemental brief.
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. Thus, based on the appeal waiver, we dismiss
the appeal. We deny Nash’s motion to apply Simmons and the FSA
and to direct that a merits brief be filed by the parties.
This court requires that counsel inform Nash in writing of his
right to petition the Supreme Court of the United States for
further review. If Nash 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
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was served on Nash. 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
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