UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4451
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAYTON FULTZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:10-cr-00015-JPJ-1)
Submitted: March 26, 2013 Decided: April 5, 2013
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Zachary T. Lee, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clayton Fultz appeals his conviction and sentence
following his guilty plea to conspiracy to possess with intent
to distribute and to distribute a controlled substance, in
violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2006), and using
and carrying a firearm in relation to, and possessing in
furtherance of, a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (2006). Fultz’s attorney filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious issues for appeal but questioning the
reasonableness of Fultz’s sentence. The Government has moved to
dismiss the appeal as barred by Fultz’s waiver of the right to
appeal in the plea agreement. Fultz filed a pro se supplemental
brief in which he contends that his guilty plea was entered into
under duress, invalidating his appellate waiver. Fultz also
asserts his innocence and requests that the court vacate his
conviction for possessing a firearm in relation to a drug
trafficking offense. We affirm in part and dismiss in part.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Fultz
knowingly and voluntarily waived his right to appeal. Fultz’s
claim that his guilty plea was involuntary is squarely
contradicted by the record. We also conclude that Fultz’s
challenge to the reasonableness of his sentence falls within the
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scope of his waiver of appellate rights. Fultz’s appellate
waiver also encompasses his assertion of innocence as to the
firearm conviction. We therefore grant in part the Government’s
motion to dismiss the appeal.
In accordance with Anders, we have reviewed the entire
record for non-waivable meritorious issues and have found none.
Accordingly, we affirm as to any non-waivable issues.
This court requires that counsel inform Fultz, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Fultz 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 Fultz. 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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