UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00114-CCB-1)
Submitted: February 21, 2013 Decided: February 25, 2013
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring,
Maryland, for Appellant. Christopher M. Mason, Special
Assistant United States Attorney, Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Johnson pled guilty to one count of conspiracy
to distribute and possess with intent to distribute one kilogram
or more of heroin and 1,000 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). In his plea
agreement, Johnson waived the right to appeal his conviction and
sentence, reserving only the right to appeal a sentence greater
than 160 months. Pursuant to his Fed. R. Crim. P. 11(c)(1)(C)
agreement with the Government, Johnson was sentenced to 160
months’ imprisonment. Johnson appealed.
Johnson’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no non-frivolous issues for appeal, but questioning whether
Johnson’s guilty plea was valid under Rule 11 and whether
Johnson’s sentence is reasonable. Although advised of his right
to do so, Johnson has not filed a pro se supplemental brief.
The Government has moved to dismiss Johnson’s appeal to the
extent that the issues he raises fall within the scope of his
plea agreement’s waiver of appellate rights. For the following
reasons, we grant the Government’s motion for partial dismissal,
dismiss in part, and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
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waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). The validity of an appellate
waiver is a question of law that we review de novo. Id. “The
validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to
appeal.” Id. at 169.
Here, the district court fully complied with Rule 11
when accepting Johnson’s plea, ensuring that Johnson understood
the rights he was relinquishing by pleading guilty and the
sentence he faced, that Johnson committed the offense to which
he was pleading, and that Johnson was aware of the limits his
plea would place on his appellate rights. Given no indication
to the contrary, we find that Johnson’s appellate waiver is
valid and enforceable. Moreover, under 18 U.S.C. § 3742(c), a
defendant’s appeal of a sentence to which he stipulated in a
Rule 11(c)(1)(C) plea agreement is limited to circumstances
where “his sentence was imposed in violation of law [or] was
imposed as a result of an incorrect application of the
sentencing guidelines.” United States v. Sanchez, 146 F.3d 796,
797 (10th Cir. 1998) (internal quotation marks and citation
omitted; alteration in original). Accordingly, we grant the
Government’s motion for partial dismissal, dismissing Johnson’s
appeal of his sentence.
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But even a valid waiver of appellate rights will not
foreclose a colorable constitutional challenge to the
voluntariness of a guilty plea. See, e.g., United States v.
Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir. 1994). Accordingly,
Johnson’s appellate waiver does not foreclose our review of the
knowing and voluntary nature of his guilty plea. Because
Johnson did not move to withdraw his guilty plea, however, we
review his Rule 11 hearing for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). As noted above,
the district court fully complied with Rule 11 when accepting
Johnson’s guilty plea, and, therefore, we find no reason to
question its validity. See United States v. Lambey, 974 F.2d
1389, 1394 (4th Cir. 1992) (en banc).
In accordance with Anders, we have reviewed the
record, mindful of the scope of the appellate waiver, and have
found no meritorious issues for appeal. We therefore affirm the
appeal in part and dismiss in part. This court requires that
counsel inform Johnson, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Johnson 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 withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Johnson. We
dispense with oral argument because the facts and legal
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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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