UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5212
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ULYSSES SAMUEL HENSEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:10-cr-00388-D-1)
Submitted: August 21, 2012 Decided: August 28, 2012
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Bradley L. Henry, BREEDING & DOTHARD, LLC, Knoxville, Tennessee,
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Unpublished opinions are not binding precedent in this circuit.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:
Ulysses Samuel Hensen appeals from his conviction and
120-month sentence following his guilty plea, pursuant to a plea
agreement, to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006).
Hensen’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there were no meritorious
issues for appeal, but questioning whether the guilty plea 1 is
valid, whether Hensen knowingly and voluntarily waived his right
to appeal, and whether the district court erred in sentencing
Hensen. Hensen filed a pro se document challenging the validity
of his plea and the calculation of the Guidelines range. 2 The
Government has moved to dismiss Hensen’s appeal of his sentence,
asserting the appeal is precluded by the waiver of appellate
rights in Hensen’s plea agreement. We grant the Government’s
motion, dismiss the appeal in part, and affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Manigan,
1
Although counsel captioned this argument a challenge to
the plea agreement, it is clear from the substance of the claim
that he challenges the validity of the guilty plea itself.
2
Hensen was granted two extensions of time, until August 13
2012, to file a pro se supplemental brief more effectively
addressing these issues. That date has passed and Hensen has
filed nothing more. We have considered the pro se issues,
however, and conclude they are either waived or without merit.
2
592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district
court questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is
both valid and enforceable. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005); United States v. General, 278 F.3d
389, 400-01 (4th Cir. 2002). The question of whether a
defendant validly waived his appeal rights is a question of law
that this court reviews de novo. Manigan, 592 F.3d at 626.
Our review of the record leads us to conclude that
Hensen knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
the appeal of Hensen’s sentence and dismiss this portion of the
appeal.
We next consider Hensen’s challenge to the validity of
his guilty plea, an issue not foreclosed by Hensen’s appellate
waiver. Because Hensen did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To satisfy the plain error standard,
an appellant must show: “(1) an error was made; (2) the error
is plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
Even if Hensen satisfies these requirements, correction of the
error lies within our discretion, if we decide that the error
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“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted).
Our review of the record reveals that the district
court fully complied with the requirements of Rule 11 in
accepting Hensen’s guilty plea. The district court properly
informed Hensen of the rights he was forfeiting as a result of
his plea and the nature of the charges and penalties he faced,
and found that Hensen was competent and entered his plea
voluntarily. The record establishes that Hensen knowingly and
voluntarily entered into his guilty plea with a full
understanding of its consequences, and that the district court
ensured the existence of a sufficient factual basis. Therefore,
there was no error in the district court’s acceptance of the
plea.
As required by Anders, we have reviewed the entire
record and have found no issues that are meritorious and outside
the scope of the waiver. We therefore affirm Hensen’s
conviction. We deny counsel’s motion to withdraw. This court
requires that counsel inform Hensen, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Hensen requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may renew his motion for leave to withdraw from
4
representation. Counsel’s motion must state that a copy thereof
was served on Hensen. 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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