United States v. Robert Trull , 450 F. App'x 281 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4986
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT TRULL,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00084-MR-2)
Submitted: September 27, 2011 Decided: October 17, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Lawrence W. Hewitt, GUTHRIE, DAVIS, HENDERSON & STATON,
P.L.L.C., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Trull pled guilty, pursuant to a written plea
agreement, to conspiracy to distribute and possess with intent
to distribute cocaine base, in violation of 21 U.S.C.A. §§ 846,
841(b)(1)(B) (West 1999 & Supp. 2011). The district court
sentenced him to seventy months’ imprisonment, the bottom of the
Guidelines range. Trull appealed, and his counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious grounds for appeal but
questioning whether the district court erred in declining to
sentence Trull pursuant to the Fair Sentencing Act of 2010
(“FSA”), Pub. L. No. 111-220, 124 Stat. 2372, and the amended
Guidelines. Trull has not filed a pro se supplemental brief.
Counsel for Trull subsequently filed a motion to remand for
resentencing pursuant to the FSA. In response, the Government
moved to dismiss Trull’s appeal based upon a waiver of appellate
rights in the plea agreement. We affirm in part and dismiss in
part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude an appeal of a
specific issue if the waiver is valid and the issue is within
the scope of the waiver. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). The question of whether a defendant
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validly waived his right to appeal is a question of law that
this court reviews de novo. Manigan, 592 F.3d at 626.
“An appellate waiver is valid if the defendant
knowingly and intelligently agreed to [waive the right to
appeal].” Id. at 627. To determine whether a waiver is knowing
and intelligent, this court examines “the totality of the
circumstances.” Id. (internal quotation marks omitted).
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.
Id.; United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005).
Trull does not contest the validity of the waiver or
the voluntariness of his guilty plea. Our review of the record
leads us to conclude that the waiver is valid and enforceable.
The magistrate judge ensured that Trull had read the plea
agreement, that counsel explained it to him, and that he
understood the consequences of the waiver. Because the waiver
is valid, it precludes review of the sentencing issue Trull
seeks to raise on appeal and any potential issues related to the
conviction that are covered by the waiver. Accordingly, we
grant in part the Government’s motion to dismiss the appeal and
dismiss this portion of the appeal, and we deny Trull’s motion
to remand for resentencing.
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Trull’s appellate waiver, however, does not preclude
an appeal of his conviction or sentence based upon ineffective
assistance of counsel or prosecutorial misconduct. In
accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal that
are not encompassed by the appeal waiver. We therefore deny in
part the Government’s motion to dismiss and affirm this portion
of the appeal.
This court requires that counsel inform Trull, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Trull 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 Trull. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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