UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY SCOTT MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:11-cr-00078-1)
Submitted: June 29, 2012 Decided: July 10, 2012
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
for Appellant. Lisa Grimes Johnston, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Scott Miller pled guilty, pursuant to a
written plea agreement, to failing to register and update
registration as required by the Sex Offender Registration and
Notification Act, 18 U.S.C. § 2250 (2006). The district court
sentenced Miller to twenty-four months’ imprisonment and a
thirty-year term of supervised release, and Miller now appeals.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal, but questioning the reasonableness of Miller’s
supervised release term. Counsel concedes, however, that
Miller’s plea agreement included a waiver-of-appellate rights
provision with respect to his sentence. Miller filed a pro se
supplemental brief challenging his conviction and sentence.
The Government seeks to enforce the appellate waiver
provision of the plea agreement and has moved to dismiss
Miller’s appeal. In response, Miller’s counsel acknowledges the
appeal waiver but argues that the thirty-year term of supervised
release amounts to a miscarriage of justice.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This Court
reviews the validity of an appellate waiver de novo and will
enforce the waiver if it is valid and the issue on appeal is
2
within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005).
An appeal waiver is valid if “the defendant knowingly
and intelligently agreed to waive the right to appeal.” Id. at
169. To determine whether a waiver is knowing and intelligent,
this Court examines “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 and
citation omitted).
In his plea agreement, Miller agreed to waive his
right to appeal any sentence of imprisonment or fine within or
below the Guidelines range corresponding to offense level
fourteen. We have thoroughly reviewed the record and conclude
that Miller knowingly and intelligently entered into the plea
agreement and that his waiver of appellate rights was knowing
and intelligent. Because Miller’s sentence of imprisonment
falls within the Guidelines range applicable to offense level
fourteen, we find that he has waived his right to appeal his
prison term. Accordingly, we grant the Government’s motion to
dismiss in part and dismiss Miller’s appeal as to his prison
term. However, Miller’s appeal waiver does not include his
conviction or supervised release term. We therefore deny in
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part the motion to dismiss as to issues falling outside the
scope of the appeal waiver. 1
In his Anders brief, counsel challenges Miller’s term
of supervised release. We review the length of a defendant’s
supervised release term for reasonableness, using an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Daniels, 541 F.3d 915, 921 (9th Cir.
2008). This review requires the Court to first examine the
sentence for “significant procedural error,” including “failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. The Court
then “‘consider[s] the substantive reasonableness of the
sentence imposed[,]’” United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008) (quoting Gall, 552 U.S. at 51), taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. If the sentence is within the Guidelines range, the Court
applies a presumption of reasonableness. Rita v. United States,
1
Because this is an Anders appeal, we are obliged to review
the entire record rather than merely the issues specifically
raised by Miller.
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551 U.S. 338, 346-59 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence).
Miller argues that the thirty-year term of supervised
release imposed by the district court is excessive and, hence,
is unreasonable. In determining the length of a supervised
release term, a sentencing court must consider several criteria,
including the nature and circumstances of the offense and the
history and characteristics of the defendant; the need for the
sentence to afford adequate deterrence to criminal conduct, to
protect the public, to provide the defendant with training,
medical care, or correctional treatment; the sentencing range
for the applicable category of offenses; pertinent policy
statements issued by the Sentencing Commission; and the need to
avoid unwarranted sentencing disparity among similar situated
defendants. 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), & 3583(c) (2006). The
district court’s thorough explanation of the sentence imposed
demonstrates that the court took these factors into
consideration when fashioning Miller’s supervised release term.
Moreover, Miller presented no arguments sufficient to rebut the
presumption of reasonableness afforded his within-Guidelines
term of supervised release. We therefore conclude that Miller’s
supervised release term was reasonable.
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We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. 2 Accordingly, we grant the Government’s motion to
dismiss in part and deny it in part. We dismiss the appeal of
Miller’s sentence of imprisonment and otherwise affirm the
judgment of the district court. This Court requires that
counsel inform Miller, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Miller 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
Miller. 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
2
We conclude that Miller is not entitled to relief on his
pro se claims.
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