United States v. Stanley Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4586

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

STANLEY SMITH, a/k/a Styles,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:10-cr-00174-1)

Submitted: January 25, 2012 Decided: February 28, 2012

Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed in part, affirmed in part by unpublished per curiam
opinion.

Harold M. Vaught, HAROLD M. VAUGHT, ATTORNEY AT LAW, Norwalk,
California, for Appellant. Joshua Clarke Hanks, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Stanley Smith pled guilty, pursuant to a written plea

agreement, to distribution of a quantity of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2006). The district court

sentenced Smith to 137 months’ imprisonment. Smith appeals.

Counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), questioning whether Smith’s sentence was

improper because the district court erroneously considered a

seven-year-old probation violation in calculating Smith’s

criminal history score and attributed to Smith an excessive drug

quantity. Smith was notified of his right to file a pro se

supplemental brief but has not done so. The Government moves to

dismiss the appeal based on the appellate waiver provision in

Smith’s plea agreement. We dismiss in part and affirm in part.

We consider a defendant’s waiver of his appellate

rights de novo. United States v. Manigan, 592 F.3d 621, 626

(4th Cir. 2010). Where the Government seeks to enforce an

appeal waiver and there is no claim the United States breached

its obligations under the plea agreement, we generally will

enforce the waiver as to issues within its scope, if the record

establishes that the defendant’s waiver was both knowing and

intelligent. United States v. Blick, 408 F.3d 162, 168-69 (4th

Cir. 2005). Our independent review of the record leads us to

conclude that Smith voluntarily and knowingly waived his right

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to appeal any sentence within the advisory Guidelines range

established by the district court prior to any departure or

variance, except for a properly preserved challenge to the

district court’s calculation of the applicable Guidelines range.

We further conclude that the sentencing issues raised in Smith’s

brief fall squarely within the scope of the appellate waiver and

observe that Smith has not preserved any challenges to the

court’s Guidelines range calculation. Accordingly, we grant the

Government’s motion to dismiss in part and dismiss Smith’s

appeal of his sentence.

Although the waiver provision in the plea agreement

precludes our review of Smith’s sentence, the waiver does not

preclude our review of any errors in Smith’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 Smith’s

conviction.

This court requires that counsel inform Smith, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Smith 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

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state that a copy thereof was served on Smith. 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.

DISMISSED IN PART;
AFFIRMED IN PART