UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5198
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERALD LEE BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (4:11-cr-00034-F-2)
Submitted: November 2, 2012 Decided: November 21, 2012
Before WILKINSON, SHEDD, and THACKER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
David L. Neal, Hillsborough, 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Unpublished opinions are not binding precedent in this circuit.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
Gerald Lee Banks appeals his convictions and the
aggregate 240-month sentence imposed by the district court
following his guilty plea, pursuant to a written plea agreement,
to Hobbs Act robbery and use or carrying of a firearm during and
in relation to a crime of violence. On appeal, Banks’ counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal but questioning the district court’s application of a
sentencing enhancement for restraint of the victim in accordance
with U.S. Sentencing Guidelines Manual § 3A1.3 (2010). Despite
receiving notice of his right to file a pro se supplemental
brief, Banks has declined to do so. The Government has filed a
motion to dismiss Banks’ appeal of his sentence based on the
appellate waiver provision in the plea agreement. We grant the
Government’s motion in part, dismiss Banks’ appeal of his
sentence, and affirm Banks’ convictions.
We review a defendant’s waiver of appellate rights de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted); see United States v. General, 278 F.3d 389, 400 (4th
2
Cir. 2002) (providing standard). Generally, if the district
court fully questions the defendant about the waiver during the
Fed. R. Crim. P. 11 plea colloquy, the waiver is valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). We will enforce a valid waiver so long as “the
issue being appealed is within the scope of the waiver.” Blick,
408 F.3d at 168. Our review of the record leads us to conclude
that Banks’ waiver of appellate rights was knowing and
intelligent. Turning to the scope of the waiver, we conclude
that the sentencing issues Banks raises in the Anders brief fall
within the scope of the appellate waiver provision. In
addition, there are no other meritorious sentencing issues
outside of the scope of the waiver. Thus, we grant in part the
Government’s motion to dismiss Banks’ appeal of his sentence.
The waiver provision, however, does not preclude our
review of Banks’ convictions pursuant to Anders. In accordance
with Anders, we have reviewed the entire record and have found
no unwaived and potentially meritorious issues for review. We
therefore affirm Banks’ convictions.
This court requires that counsel inform Banks, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Banks 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
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Banks. 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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