United States v. Estes , 378 F. App'x 325 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4602
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COREY ESTES,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:05-cr-00013-FPS-JES-1)
Submitted: March 22, 2010 Decided: May 20, 2010
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. John Castle Parr, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Estes pled guilty pursuant to a plea agreement
to conspiring to possess with intent to distribute more than
five kilograms of cocaine and fifty grams of cocaine base, in
violation of 21 U.S.C. § 846 (2006). At sentencing, the
district court determined that Estes had an advisory guidelines
range of 262 to 327 months’ imprisonment and sentenced Estes to
262 months’ imprisonment. The district court later reentered
judgment against Estes to reinstate Estes’ appellate rights, and
Estes timely noted his appeal from the reentered judgment.
On appeal, Estes has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). ∗ The Government has
filed a motion to dismiss Estes’ appeal based on the waiver of
appellate rights in Estes’ plea agreement. We affirm in part
and dismiss in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude 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, 168-69 (4th Cir. 2005). The
∗
Estes was informed of his right to file a pro se
supplemental brief. He has not done so.
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question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168. Generally, if the district court specifically
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. United States v. Wessells, 936 F.2d
165, 167-68 (4th Cir. 1991).
Estes knowingly and voluntarily waived his right to
appeal any sentence within the maximum provided in the statute
of conviction. We therefore grant the motion to dismiss in
part, and dismiss the appeal to the extent it relates to Estes’
sentence.
In his Anders brief, Estes questions whether the
district court complied with Rule 11 in accepting his guilty
plea. The appellate waiver provision does not preclude our
review of this issue, and we therefore deny the motion to
dismiss in part. During the plea hearing, the district court
properly informed Estes of the nature of the charges and
penalties he faced and the rights he was forfeiting as a result
of his plea. The court also found that Estes was competent and
entered his plea knowingly and voluntarily and that there was a
sufficient factual basis for the plea. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We find
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that the district court fully complied with Rule 11 in accepting
Estes’ plea, and therefore we affirm Estes’ conviction.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Estes’ conviction and dismiss the appeal of
his sentence. This court requires that counsel inform Estes, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Estes 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 Estes.
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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