UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4969
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY GILLIAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00040-BO-1)
Submitted: April 19, 2012 Decided: April 24, 2012
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Anthony Gilliam pled guilty, pursuant to a written
plea agreement, to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court sentenced Gilliam to 110 months in prison. On
appeal, counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious
grounds for appeal but questioning whether the district court
erred in applying a cross reference to attempted murder in
establishing Gilliam’s Guidelines range. Gilliam, informed of
his right to file a pro se supplemental brief, has not done so.
The Government has moved to dismiss the appeal, asserting that
the sentencing claim raised by counsel is barred by a waiver of
appellate rights in Gilliam’s plea agreement. Counsel for
Gilliam opposes the motion as premature. We grant the motion to
dismiss in part and deny it in part, affirm Gilliam’s
conviction, and dismiss the appeal of his sentence.
We review de novo the validity of a defendant’s waiver
of appellate rights. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). “A defendant may waive his right to appeal if
that waiver is the result of a knowing and intelligent decision
to forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted). To determine whether the waiver is knowing and
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intelligent, we look to “the totality of the 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). We will enforce a valid waiver so long as “the issue
being appealed is within the scope of the waiver.” Blick, 408
F.3d at 168.
In the plea agreement, Gilliam waived his right to
appeal any sentence but one in excess of the established
Guidelines range. The district court sentenced Gilliam at the
bottom of the Guidelines range. Our review of the record
convinces us that Gilliam’s waiver was knowing and intelligent.
The waiver provision was clearly stated in the plea agreement;
Gilliam, then thirty-eight and with some college education, was
represented by counsel; and the district court substantially
complied with the requirements of Fed. R. Crim. P. 11 and
specifically reviewed the appeal waiver provision with Gilliam.
Therefore, the waiver is valid. Because the sentencing issue
raised by counsel in the Anders briefs clearly falls within the
scope of the waiver provision, we dismiss the appeal of that
claim.
In accordance with Anders, we have thoroughly examined
the entire record for any other potentially meritorious issues
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outside the scope of Gilliam’s appeal waiver and have found
none. Therefore we affirm Gilliam’s conviction pursuant to his
knowing and intelligent guilty plea, and dismiss the appeal of
his sentence.
This court requires that counsel inform Gilliam, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Gilliam 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 Gilliam. 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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