UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4370
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FAYE DENISE HEGGINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:10-cr-00119-D-1)
Submitted: November 3, 2011 Decided: November 17, 2011
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Faye Denise Heggins appeals her convictions, following
her guilty plea to two counts of fraud and false statements in a
tax return, in violation of 26 U.S.C. § 7206(1), (2) (2006), and
the twenty-four-month sentence she received. Heggins’ attorney
filed this appeal pursuant to Anders v. California, 386 U.S. 738
(1967), averring that there are no meritorious issues for
appeal, but questioning the substantive reasonableness of
Heggins’ sentence. Although advised of her right to file a pro
se supplemental brief, Heggins has not done so. The Government
has moved to dismiss the appeal on the basis of the waiver of
appellate rights contained in Heggins’ plea agreement. We grant
the Government’s motion to dismiss and dismiss the appeal of
Heggins’ sentence, and we affirm her convictions.
We first conclude that Heggins has waived her right to
appeal her sentence. A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742
(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). This court reviews the validity of an appellate waiver
de novo, and will enforce the waiver if it is valid and the
issue appealed is within the scope thereof. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. To
2
determine whether a waiver is knowing and intelligent, this
court examines the background, experience, and conduct of the
defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). Generally, if the district court fully
questions a defendant regarding the waiver during the Fed. R.
Crim. P. 11 plea colloquy, the waiver is both valid and
enforceable. United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The record establishes that the district court
fully discussed the terms of the waiver and questioned Heggins
to ensure her understanding of those terms. Accordingly, we
conclude that Heggins knowingly and intelligently entered into
the plea agreement and understood the waiver. See United States
v. General, 278 F.3d 389, 400 (4th Cir. 2002).
We next consider whether Heggins’ challenge to the
substantive reasonableness of her sentence falls within the
scope of the waiver. According to the plea agreement, Heggins
waived the right “to appeal whatever sentence is imposed,” save
for a sentence in excess of the Guidelines range determined at
sentencing. (J.A. 11). * The twenty-four-month sentence Heggins
received was within her Guidelines range. Accordingly, we
conclude the waiver bars appellate review of the substantive
*
Citations to “J.A.” refer to the joint appendix submitted
by the parties.
3
reasonableness of Heggins’ sentence, and thus grant the
Government’s motion to dismiss the appeal of Heggins’ sentence.
The appellate waiver does not, however, preclude
appellate review of Heggins’ convictions. Although no challenge
to Heggins’ convictions is raised, because this case is before
us pursuant to Anders, we have reviewed the Rule 11 hearing and
discern no infirmity in that proceeding. Accordingly, we affirm
Heggins’ convictions.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We thus grant the Government’s motion to dismiss as
to Heggins’ sentence and affirm Heggins’ convictions. This
court requires that counsel inform Heggins, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Heggins 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 Heggins. 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.
AFFIRMED IN PART;
DISMISSED IN PART
4