United States v. Herman McCray, Jr. , 586 F. App'x 148 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERMAN LEE MCCRAY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00136-F-1)
Submitted: November 25, 2014 Decided: December 8, 2014
Before KEENAN and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
R. Clarke Speaks, SPEAKS LAW FIRM PC, Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:
Herman Lee McCray, Jr., pled guilty, pursuant to a
written plea agreement, to distributing a quantity of cocaine,
in violation of 21 U.S.C. § 841(a)(1) (2012). The district
court sentenced him below the advisory U.S. Sentencing
Guidelines range to 144 months’ imprisonment. McCray timely
appealed.
Counsel for McCray filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), averring there are no
meritorious grounds for appeal, but questioning the substantive
reasonableness of McCray’s sentence. McCray filed a pro se
supplemental brief challenging his designation as a career
offender. The Government has moved to dismiss the appeal based
on the appellate waiver provision in McCray’s plea agreement.
For the reasons that follow, we grant the Government’s motion
and dismiss this appeal as to McCray’s sentence, and we affirm
his conviction.
We review de novo the validity of an appeal waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013). “We generally will enforce a
waiver . . . if the record establishes that the waiver is valid
and that the issue being appealed is within the scope of the
waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012) (internal quotation marks and alteration omitted). A
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defendant’s waiver is valid if he agreed to it “knowingly and
intelligently.” United States v. Manigan, 592 F.3d 621, 627
(4th Cir. 2010).
Our review of the record confirms that McCray
knowingly and voluntarily waived the right to appeal his
sentence, reserving only the right to appeal a sentence in
excess of the Guidelines range established at sentencing.
Because the district court imposed a below-Guidelines sentence,
we grant the Government’s motion to dismiss and dismiss the
appeal of McCray’s sentence.
McCray’s appeal waiver does not preclude appellate
review of his conviction. Counsel does not challenge the
conviction on appeal, and our review of the record, conducted
pursuant to Anders, revealed no potentially meritorious claims
relevant to the validity of McCray’s conviction. We therefore
affirm the judgment as to McCray’s conviction.
This court requires that counsel inform McCray, in
writing, of his right to petition the Supreme Court of the
United States for further review. If McCray requests that such
a petition be filed, but counsel believes that the 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 of the motion was served on McCray. We
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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
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