UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4792
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY SEAN YANCEY, a/k/a Shizz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00106-FL-1)
Submitted: January 27, 2012 Decided: February 2, 2012
Before SHEDD, WYNN, and FLOYD, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Stacey A. Phipps, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Sean Yancey pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute and possess
with intent to distribute heroin, in violation of 21 U.S.C.
§ 846 (2006), and was sentenced to 155 months in prison. On
appeal, Yancey asserts that his base offense level was
incorrectly increased based on his purported career offender
status because he argues that after United States v. Simmons,
649 F.3d 237 (4th Cir. 2011), he has only one proper career
offender predicate offense. Yancey also asserts that his
sentence is unlawful because the district court calculated the
drug weights with which to attribute him at sentencing based not
on actual drug weight, but on statements made by confidential
informants. Relying on the waiver of appellate rights in
Yancey’s plea agreement, the Government urges the dismissal of
this appeal as to Yancey’s drug weight calculation argument, and
asks that we affirm as to Yancey’s career offender
classification. We dismiss in part, vacate in part, and remand.
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
2
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 this court reviews
de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). We conclude that Yancey knowingly and voluntarily waived
the right to appeal any sentence imposed, reserving only the
right to appeal a sentence above the Guidelines range calculated
at sentencing and claims of ineffective assistance of counsel or
prosecutorial misconduct. Because the waiver is valid and
precludes Yancey’s challenge as to the district court’s drug
weight calculation, we dismiss the appeal in part.
Yancey’s appellate waiver does not bar his claim that
he was improperly classified as a career offender. 1 The parties
agree that Yancey’s career offender classification depends on
whether Yancey’s September 13, 2007 North Carolina conviction
for possession with intent to sell or deliver ecstasy, for which
Yancey was sentenced to nine to eleven months in prison, remains
a proper career offender predicate offense after Simmons, 649
F.3d at 244 (holding that a district court must look to whether
a particular defendant could receive more than one year in
prison based upon his offense class and prior record level to
1
The Government agreed at sentencing that Yancey could
appeal his career offender classification.
3
determine whether a prior North Carolina conviction may serve as
a career offender predicate offense).
Under the North Carolina Structured Sentencing Act,
sentences are contingent on two factors: the designated “class
of offense” and the offender’s “prior record level.” N.C. Gen.
Stat. § 15A-1340.13(b) (2009). Although the Government has
included as an addendum to its appellate brief a copy of
Yancey’s state judgment of conviction, which suggests that the
September 13th conviction was for a Class H offense, and that
his prior record level was IV, the district court record is
devoid of evidence establishing whether the conviction remains a
proper career offender predicate offense after Simmons. Because
the district court had no opportunity to consider the judgment
of conviction for the September 13th conviction, and since the
parties were not given the opportunity to litigate the
judgment’s validity or gauge its implication, we decline to take
judicial notice over the judgment of conviction. See United
States v. Vann, 660 F.3d 771, 776 n.6 (4th Cir. 2011).
Accordingly, we vacate Yancey’s sentence, in part, and remand
the matter to the district court so it may determine, in the
first instance, whether Yancey’s September 13th conviction
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remains a proper career offender predicate offense after
Simmons. 2
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;
VACATED IN PART;
AND REMANDED
2
By this disposition, we intimate no view as to whether
Yancey remains a career offender after Simmons.
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