UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4162
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CORTEZ MAURICE MALLORY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:11-cr-00171-DKC-3)
Submitted: September 27, 2012 Decided: October 1, 2012
Before MOTZ, DAVIS, and WYNN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Mark J. Carroll, Potomac, Maryland, for Appellant. William
Moomau, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cortez Maurice Mallory appeals from his convictions
for bank robbery and entering a bank with intent to commit
larceny. The district court accepted the terms of the plea
agreement entered pursuant to Fed. R. Crim. P. 11(c)(1)(C) and
sentenced Mallory to the agreed-upon 97 months in prison. On
appeal, counsel has submitted a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious issues
for appeal, but questioning whether Mallory’s guilty plea was
valid under Fed. R. Crim. P. 11 and whether the district court
erred in permitting a co-defendant to withdraw his motion to
suppress. In response, the Government has filed a motion to
dismiss in part, seeking to enforce the waiver provision in the
plea agreement. Although informed of his right to do so,
Mallory has not filed a pro se supplemental brief. We grant the
Government’s motion and dismiss the appeal in part. Finding
Mallory’s plea was voluntary, we affirm his convictions.
A defendant may, in a valid plea agreement, waive the
right to appeal. United States v. Wiggins, 905 F.2d 51, 53 (4th
Cir. 1990). We review de novo whether a defendant has
effectively waived his right to appeal. United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992). To determine whether a
waiver is knowing and intelligent, we examine “the totality of
the circumstances, including the experience and conduct of the
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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). Generally, if a court
fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005).
In accordance with the language of the plea agreement,
we conclude that Mallory knowingly and intelligently waived the
right to appeal his conviction and sentence, reserving only the
right to appeal a sentence over 97 months. The language of the
waiver provision is clear and unambiguous, and at the Rule 11
hearing, the court reviewed the plea agreement, including the
waiver. Mallory stated that he understood and accepted the plea
agreement. Of significance, Mallory does not challenge either
the validity of the waiver provision on appeal or the
Government’s conclusion that his challenge to the motion to
suppress falls within the scope of the waiver. Because Mallory
was sentenced as contemplated by the plea agreement, we grant
the Government’s motion to dismiss in part and dismiss the
appeal of Mallory’s sentence, as well as the appeal from the
withdrawal of the motion to suppress.
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However, as the Government notes, a defendant cannot
waive a colorable claim that his plea was not knowing or
voluntary. Nonetheless, while we review this claim on the
merits, our review of the plea transcript reveals that the
district court substantially complied with Rule 11 and that
Mallory’s guilty plea was knowing and voluntary. In addition,
we have examined the record pursuant to Anders for any unwaived,
meritorious claims for appeal, and we have found none.
Accordingly, we affirm Mallory’s convictions.
We deny counsel’s motion to withdraw at this time.
This court requires that counsel inform Mallory in writing of
his right to petition the Supreme Court of the United States for
further review. If Mallory requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may motion this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Mallory. 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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