UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4477
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE MARQUIS MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (2:10-cr-00033-BR-3)
Submitted: March 13, 2012 Decided: March 20, 2012
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
C. Burell Shella, C. BURELL SHELLA, PC, Durham, 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Unpublished opinions are not binding precedent in this circuit.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:
Andre Marquis Mitchell pled guilty, pursuant to a plea
agreement, to conspiracy to distribute and possess with intent
to distribute more than fifty grams of cocaine base and a
quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2006). The district court sentenced Mitchell to 120 months’
imprisonment, followed by five years of supervised release. On
appeal, Mitchell’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that he could find no
meritorious issues for appeal, but questioning whether the
district court adequately addressed the sentencing factors set
forth in 18 U.S.C. § 3553(a). The Government has moved to
dismiss Mitchell’s appeal, asserting that Mitchell waived his
right to appeal his sentence in his plea agreement. We affirm
in part and dismiss in part.
We review de novo whether a defendant has effectively
waived his right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). An appellate waiver must be “the
result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citation
omitted). To determine whether a waiver is knowing and
intelligent, we examine “the totality of the circumstances,
including the experience and the conduct of the accused, as well
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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 and
citation omitted). Generally, if a court fully questions a
defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Mitchell
knowingly and voluntarily waived his right to appeal his
sentence. In the plea agreement, Mitchell agreed to waive the
right “to appeal whatever sentence is imposed . . . reserving
only the right to appeal from a sentence in excess of the
applicable advisory Guidelines range.” As the district court
imposed a sentence within the advisory Guidelines range, the
issue Mitchell seeks to raise on appeal falls within the scope
of his appellate waiver. Accordingly, we grant the Government’s
motion to dismiss in part and dismiss Mitchell’s appeal of his
sentence.
The waiver provision, however, does not preclude this
court’s review of Mitchell’s conviction pursuant to Anders.
Prior to accepting a guilty plea, a trial court must conduct a
plea colloquy in which it informs the defendant of, and
determines that the defendant comprehends, the nature of the
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charge to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Additionally, the district court must ensure that the
defendant’s plea was voluntary and did not result from force,
threats, or promises not contained in the plea agreement. Fed.
R. Crim. P. 11(b)(2).
We find that the district court complied with the
requirements of Rule 11. In accordance with Anders, we have
reviewed the record and have found no meritorious issues for
appeal. We therefore affirm Mitchell’s conviction.
This court requires that counsel inform Mitchell, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Mitchell requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Mitchell. 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
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