UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4558
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WADDY NATHAN AGNEW, a/k/a Gator,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:12-cr-00002-FL-1)
Submitted: February 12, 2013 Decided: March 12, 2013
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, 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Unpublished opinions are not binding precedent in this circuit.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:
Waddy Nathan Agnew pled guilty, pursuant to a plea
agreement, to conspiracy to distribute and to possess with
intent to distribute 500 grams or more of cocaine and a quantity
of cocaine base, in violation of 21 U.S.C. § 846 (2006), and was
sentenced to 135 months’ imprisonment. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious grounds for appeal
but questioning the calculation and reasonableness of Agnew’s
sentence. Agnew was informed of his right to file a pro se
brief but has not done so. The Government has filed a motion to
dismiss this appeal on the ground that Agnew knowingly and
intelligently waived the right to appeal his sentence. For the
reasons that follow, we dismiss in part and affirm in part.
In his plea agreement, Agnew waived the right to
appeal his sentence, except to the extent that it exceeded the
Guidelines range established at sentencing. A defendant may
waive the right to appeal if that waiver is knowing and
intelligent. United States v. Poindexter, 492 F.3d 263, 270
(4th Cir. 2007). Generally, if the district court fully
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. Wessells, 936 F.2d
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165, 167-68 (4th Cir. 1991). A review of the record reveals
that the court determined Agnew was competent to plead guilty,
had the opportunity to discuss his plea agreement with counsel,
entered his guilty plea in the absence of threats or force, and
understood the terms of his appeal waiver. Thus, we conclude
that Agnew validly waived his right to appeal his sentence and
that the claims raised on appeal fall within the scope of his
waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005) (providing standard). Accordingly, we grant the
Government’s motion to dismiss in part and dismiss the appeal of
Agnew’s sentence.
Although the waiver provision in the plea agreement
precludes our review of Agnew’s sentence, the waiver does not
preclude our review of any errors in Agnew’s conviction that may
be revealed by our review pursuant to Anders. In accordance
with Anders, we have reviewed the record in this case and have
found no meritorious issues for appeal. We therefore deny in
part the Government’s motion to dismiss and affirm Agnew’s
conviction.
This court requires that counsel inform Agnew, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Agnew requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
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leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Agnew. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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