UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4892
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE TURNER PRIMUS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:12-cr-00024-GMG-DJJ-1)
Submitted: May 17, 2013 Decided: May 30, 2013
Before DAVIS, WYNN, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia; Thomas Oliver Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Turner Primus pled guilty, pursuant to a written
plea agreement, to possession with intent to distribute 4.2
grams of cocaine base, in violation of 21 U.S.C. § 841(a)
(2006). The district court sentenced Primus to 188 months’
imprisonment, to be served consecutively to any prior state or
federal sentence. Primus appeals.
On appeal, Primus’ counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether an
information filed pursuant to 21 U.S.C. § 851 (2006) was
adequate to support the district court’s application of a
statutory sentencing enhancement. Primus was notified of his
right to file a pro se supplemental brief but has not done so.
The Government has moved to dismiss the appeal based on the
appellate waiver provision in Primus’ plea agreement. We
dismiss in part and affirm in part.
We review the validity of an appeal waiver de novo.
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).
Where the government seeks to enforce an appeal waiver and did
not breach its obligations under the plea agreement, we will
enforce the waiver if the record establishes that (1) the
defendant knowingly and intelligently agreed to waive his right
to appeal, and (2) the issues raised on appeal fall within the
2
scope of the waiver. United States v. Blick, 408 F.3d 162,
168-69 (4th Cir. 2005).
To determine whether a defendant has entered an appeal
waiver knowingly and intelligently, we must examine the totality
of the circumstances, including the defendant’s experience,
conduct, educational background, and familiarity with the
agreement’s terms. United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). “An appeal waiver ‘is not knowingly or
voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision of the
plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the
full significance of the waiver.’” United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005) (quoting United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992)).
Our review of the record indicates that Primus’ waiver
is valid and enforceable as to issues within its scope. During
the plea hearing, the magistrate judge 1 specifically advised
Primus regarding the terms of his appellate waiver. Primus
confirmed that he had reviewed the plea agreement with counsel.
The terms of the written waiver were “clear and unmistakable.”
1
Primus consented to arraignment by a magistrate judge.
See 28 U.S.C. § 636 (2006).
3
See Blick, 408 F.3d at 169. Further, Primus testified that he
understood the rights he was waiving through that provision, and
his age, education, and understanding of the English language
further support this conclusion. Under the totality of the
circumstances, we conclude that Primus knowingly and
intelligently waived his appellate rights pursuant to this
provision.
Primus’ appellate waiver forfeited his right to appeal
any sentence below the statutory maximum provided for his
offense. Primus in fact received such a sentence. 2 Thus, we
grant the motion to dismiss insofar as it addresses an appeal of
Primus’ sentence. However, because the waiver provision does
not foreclose a challenge to Primus’ conviction, we deny the
motion to dismiss insofar as it seeks to dismiss an appeal of
Primus’ conviction.
In accordance with Anders, we have reviewed the record
in this case and have found no potentially meritorious issues
that fall outside the scope of the appellate waiver. We
therefore grant the Government’s motion to dismiss in part and
dismiss the appeal of Primus’ sentence. We also deny the motion
2
Insofar as a challenge to the sufficiency of the § 851
information filed by the Government could affect the statutory
maximum applicable to Primus, he received a sentence well below
the statutory maximum applicable even without the enhancement
for his prior conviction. See 21 U.S.C. § 841(b)(1)(C) (2006).
4
to dismiss in part and affirm the district court’s judgment as
to all remaining issues. This court requires that counsel
inform Primus, in writing, of the right to petition the Supreme
Court of the United States for further review. If Primus
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 Primus.
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.
AFFIRMED IN PART;
DISMISSED IN PART
5