United States v. Dwayne Frazier

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4059

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

DWAYNE ANTHONY FRAZIER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00149-BO-1)

Submitted: September 13, 2011 Decided: October 24, 2011

Before AGEE, DAVIS, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, 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Unpublished opinions are not binding precedent in this circuit.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:

Dwayne Anthony Frazier pled guilty to one count of

manufacturing child pornography, in violation of 18 U.S.C.A.

§ 2251(a), (d) (West Supp. 2011), and was sentenced to 180

months’ imprisonment, $10,000 in restitution, and a life term of

supervised release. On appeal, Frazier’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no meritorious issues for appeal, but

questioning whether the life term of supervised release is

substantively unreasonable. Frazier was informed of his right

to file a pro se supplemental brief but has not done so. The

Government has filed a motion to dismiss the appeal based on the

appellate waiver provision in Frazier’s plea agreement. We

grant the motion to dismiss in part, and deny in part.

A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006). United States v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the

validity of an appellate waiver de novo, and we will uphold a

waiver of appellate rights if the waiver is valid and the issue

being appealed is covered by the waiver. United States v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver

is valid if the defendant’s agreement to the waiver was knowing

and intelligent. Id. at 169. To determine whether a waiver is

knowing and intelligent, we examine “the totality of the

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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 fully

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 significance of the

waiver and was not denied effective assistance of counsel, the

waiver is valid. United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).

A review of the Rule 11 hearing transcript confirms

that Frazier knowingly and intelligently waived his right to

appeal. In his plea agreement, Frazier explicitly waived the

right to challenge his sentence on appeal, reserving only the

right to appeal a sentence imposed in excess of the established

Guidelines range, ineffective assistance of counsel, or

prosecutorial misconduct under limited circumstances. Frazier

confirmed at his Rule 11 hearing that he read and understood the

plea agreement. The district court conducted the colloquy

required under Rule 11, ensuring that Frazier understood the

waiver and the charges and potential penalties, and was

competent to enter the plea. We therefore conclude that Frazier

knowingly and intelligently waived the right to appeal his

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sentence. Because Frazier challenges only his sentence on

appeal, and Frazier’s appeal falls squarely within the scope of

the waiver provision, we grant the motion to dismiss the appeal

of Frazier’s sentence.

The waiver provision did not, however, waive Frazier’s

right to appeal his conviction. Defense counsel asserts no

errors related to Frazier’s guilty plea or conviction, but the

waiver provision does not preclude our Anders review of the

record. That review has disclosed no potentially meritorious

issues not covered by the waiver. Accordingly, we deny the

Government’s motion to dismiss as to Frazier’s conviction, and

we affirm the conviction.

In sum, the Government’s motion to dismiss is granted

in part and denied in part, Frazier’s appeal of his sentence is

dismissed, and his conviction is affirmed. This court requires

that counsel inform Frazier, in writing, of his right to

petition the Supreme Court of the United States for further

review. If Frazier 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 Frazier. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART;
DISMISSED IN PART