UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REMY HEATH, a/k/a Remy, a/k/a King Remy, a/k/a King Mellow,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cr-00598-AW-7)
Submitted: June 21, 2012 Decided: June 25, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Harry D. McKnett, LAW OFFICE OF HARRY D. MCKNETT, LLC, Columbia,
Maryland, for Appellant. Emily Noel Glatfelter, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Remy Heath pled guilty in a Fed. R. Crim. P. 11
hearing to one count of conspiracy to participate in
racketeering activity, in violation of 18 U.S.C. § 1962(d)
(2006). He was sentenced to 130 months in prison. In
accordance with Anders v. California, 386 U.S. 738 (1967),
Heath’s attorney has filed a brief certifying that there are no
meritorious issues for appeal but questioning whether Heath’s
guilty plea was knowing and voluntary and whether his sentence
was reasonable. Although informed of his right to do so, Heath
has not filed a supplemental pro se brief. The Government has
moved to dismiss Heath’s appeal to the extent that the issues he
raises fall within the scope of his plea agreement’s waiver of
appellate rights. For the following reasons, we grant the
Government’s motion in part, and dismiss the appeal in part and
affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). The validity of an appellate
waiver is a question of law that we review de novo. Id. “The
validity of an appeal waiver depends on whether the defendant
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knowingly and intelligently agreed to waive the right to
appeal.” Id. at 169. This determination, often made based on
the sufficiency of the plea colloquy and whether the district
court questioned the defendant about the appeal waiver,
ultimately turns on an evaluation of the totality of the
circumstances. Id.
Here, the district court substantially complied with
Rule 11 when accepting Heath’s plea, ensuring that Heath
understood the rights he was relinquishing by pleading guilty
and the sentence he faced, that he committed the offense to
which he was pleading, and that he was aware of the limits his
plea would place on his appellate rights. Given no indication
to the contrary, we find that Heath’s appellate waiver is valid
and enforceable. Accordingly, we grant the Government’s motion
to dismiss the appeal to the extent it raises issues within the
scope of the waiver, including Heath’s appeal of his sentence.
But even a valid waiver of appellate rights will not
foreclose a colorable constitutional challenge to the
voluntariness of a guilty plea. See, e.g., United States v.
Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). Accordingly,
Heath’s appellate waiver does not foreclose our review of the
knowing and voluntary nature of his guilty plea. As noted
above, however, the district court substantially complied with
Rule 11 when accepting Heath’s plea, and, therefore, we find no
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reason to question its validity. See United States v. Lambey,
974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
In accordance with Anders, we have reviewed the
record, mindful of the scope of Heath’s appellate waiver, and
have found no meritorious issues for appeal. We therefore
dismiss the appeal in part and affirm in part. This court
requires that counsel inform Heath, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Heath 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
Heath. 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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