UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW FRANKLIN HOOD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:11-cr-00112-H-1)
Submitted: October 19, 2012 Decided: November 7, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Andrew Franklin
Hood pled guilty to a single count of receipt of child
pornography, in violation of 18 U.S.C.A. § 2252(a)(2) (West
Supp. 2012), and was sentenced to 121 months’ imprisonment.
Counsel for Hood has now submitted a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that he has
divined no meritorious grounds for appeal but questioning
whether the district court improperly viewed the Guidelines as
mandatory, rendering Hood’s sentence procedurally unreasonable.
The Government has moved to dismiss the appeal of Hood’s
sentence based on his waiver of appellate rights. Hood was
informed of his right to file a pro se supplemental brief, but
has not done so. We have reviewed the record, and we grant the
Government’s motion, dismissing Hood’s appeal in part and
affirming in part.
A criminal defendant may, in a valid plea agreement,
waive the right to appeal under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review
the validity of an appellate waiver de novo and will enforce the
waiver if it is valid and the issue appealed is within the scope
of that waiver. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
plea colloquy performed in accordance with Fed. R. Crim. P. 11,
the waiver is both valid and enforceable. Manigan, 592 F.3d at
627; United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005). Our review of the record convinces us that Hood
knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
as to all sentencing issues that a defendant may lawfully waive.
As to any remaining issues, see Blick, 408 F.3d at
171-73; United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007), we have reviewed the entire record in accordance with
Anders and have found no unwaived meritorious issues. We
therefore affirm the district court’s judgment as to all issues
not encompassed by Hood’s valid waiver of appellate rights.
This court requires that counsel inform Hood, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Hood 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 Hood.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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