UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4954
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK AARON WAZNY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (7:10-cr-00125-FL-1)
Submitted: April 24, 2012 Decided: May 10, 2012
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Patrick Aaron Wazny pleaded guilty, pursuant to a
written plea agreement, to one count of distribution of child
pornography, in violation of 18 U.S.C.A. § 2252(a)(1) (West 2006
& Supp. 2011), and one count of possession of child pornography,
in violation of 18 U.S.C.A. § 2252(a)(2). The district court
calculated Wazny’s Guidelines range under the U.S. Sentencing
Guidelines Manual (2010) at 324 to 360 months’ imprisonment and
sentenced Wazny to 240 months’ imprisonment on the distribution
count and a consecutive sentence of 100 months’ imprisonment on
the possession count, for a total imprisonment term of 340
months. On appeal, Wazny’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court erred in the manner in which it determined
that consecutive prison terms were warranted in Wazny’s case.
The Government has moved to dismiss the appeal of Wazny’s
sentence based on his waiver of appellate rights. We dismiss in
part and affirm in part.
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
2
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). 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).
Our review of the record leads us to conclude that
Wazny knowingly and voluntarily waived the right to appeal his
340-month prison sentence. We therefore grant the Government’s
motion to dismiss and dismiss the appeal of Wazny’s sentence.
Although Wazny’s appeal waiver insulates his sentence from
appellate review, the waiver does not prohibit our review of his
convictions pursuant to Anders. In accordance with Anders, we
have reviewed the remainder of the record in this case and have
found no meritorious issues for review. We therefore affirm
Wazny’s convictions and dismiss the appeal of his sentence.
This Court requires that counsel inform Wazny, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Wazny 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 Wazny.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
3
before the Court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
4