UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4161
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARAMIS GERALD WIGGINS,
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. (5:10-cr-00182-FL-1)
Submitted: October 19, 2011 Decided: November 18, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
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Unpublished opinions are not binding precedent in this circuit.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:
Aramis Gerald Wiggins pled guilty, pursuant to a
written plea agreement, to three counts of distribution of more
than five grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006). The district court sentenced Wiggins to
eighty-seven months’ imprisonment on each count, to be served
concurrently. Wiggins appeals. Counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
two sentencing issues and challenging the validity of the
appellate waiver in Wiggins’ plea agreement. Wiggins was
notified of his right to file a pro se supplemental brief but
has not done so. The Government moves to dismiss the appeal
based on the appellate waiver. We dismiss in part and affirm in
part.
We consider a defendant’s waiver of his appellate
rights de novo. * Manigan, 592 F.3d at 626. Where the Government
seeks to enforce an appeal waiver and there is no claim the
United States breached its obligations under the plea agreement,
we generally will enforce the waiver as to issues within the
*
As a threshold matter, we reject Wiggins’ assertion that
appeal waivers are per se invalid. See United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United States v.
Cohen, 459 F.3d 490, 495 (4th Cir. 2006).
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scope of the waiver, if the record establishes that the
defendant’s waiver of appellate rights was both knowing and
intelligent. United States v. Blick, 408 F.3d 162, 168-69 (4th
Cir. 2005). Our independent review of the record leads us to
conclude that Wiggins voluntarily and knowingly waived his right
to appeal any sentence within his advisory Guidelines range. In
addition, the sentencing issues raised in Wiggins’ brief fall
squarely within the scope of the appellate waiver. Accordingly,
we grant the Government’s motion to dismiss in part and dismiss
the appeal of Wiggins’ sentence.
Although the waiver provision in the plea agreement
precludes our review of the sentence, the waiver does not
preclude our review of any errors in Wiggins’ convictions that
may be revealed by our review pursuant to Anders. In accepting
Wiggins’ guilty plea, the magistrate judge substantially
complied with Fed. R. Crim. P. 11. Although the magistrate
judge made two minor omissions during the plea colloquy, see
Fed. R. Crim. P. 11(b)(1)(A), (c)(2), these omissions did not
affect Wiggins’ substantial rights. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing plain
error standard of review). Moreover, the magistrate judge
ensured that the plea was entered knowingly and voluntarily and
was supported by an independent factual basis. See United
States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
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Thus, we deny the Government’s motion to dismiss in part and
affirm the convictions.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore grant in part the Government’s motion to dismiss
and dismiss the appeal of Wiggins’ sentence, and deny in part
the Government’s motion to dismiss and affirm Wiggins’
convictions. This court requires that counsel inform Wiggins,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Wiggins 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 Wiggins.
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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