United States v. Cedric McKenith ( 2015 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-4105
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    CEDRIC ANTOINE MCKENITH, a/k/a Antoine Cedric McKenith,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. James C. Dever III,
    Chief District Judge. (7:14-cr-00026-D-1)
    Submitted:   September 30, 2015           Decided:   October 8, 2015
    Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
    Assistant Federal Public Defender, Raleigh, 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    Unpublished opinions are not binding precedent in this circuit.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:
    Cedric   Antoine   McKenith   appeals    the     180-month    sentence
    imposed by the district court after he pled guilty to selling a
    firearm and ammunition to a felon, in violation of 18 U.S.C.
    § 922(d)(1) (2012), and possessing a firearm in furtherance of a
    drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
    (2012).    McKenith’s counsel has filed a brief pursuant to Anders
    v. California, 
    386 U.S. 738
    (1967), stating that he has found no
    meritorious grounds for appeal but raising as a potential issue
    the substantive reasonableness of McKenith’s sentence.             McKenith
    has filed a pro se supplemental brief arguing that the district
    court erred in determining his relevant conduct at sentencing
    and in applying the Sentencing Guidelines.
    The   Government   has   moved    to   dismiss    pursuant     to   the
    appellate waiver in McKenith’s plea agreement.           McKenith argues
    that the waiver is invalid and does not apply to the claims
    asserted in his pro se brief.      We grant the Government’s motion
    to dismiss and dismiss the appeal.
    Pursuant to a plea agreement, a defendant may waive his
    appellate rights under 18 U.S.C. § 3742 (2012).            United States
    v. Archie, 
    771 F.3d 217
    , 221 (4th Cir. 2014), cert. denied, 
    135 S. Ct. 1579
    (2015).      A waiver will preclude an appeal of “a
    specific issue if . . . the waiver is valid and the issue being
    appealed is within the scope of the waiver.”             
    Id. Whether a
    2
    defendant validly waived his right to appeal is a question of
    law that we review de novo.                United States v. Copeland, 
    707 F.3d 522
    , 528 (4th Cir. 2013).
    Our       review   of   the    record        leaves   us    with      no    doubt    that
    McKenith knowingly and voluntarily entered his guilty plea and
    waived his appellate rights.                    Although McKenith argues that his
    waiver      is    invalid      because     he    was    unaware        of    the    facts    the
    district         court    would   find     at    sentencing,       the       district      court
    fully explained the sentencing procedures and was not required
    to make these determinations prior to accepting McKenith’s plea.
    See United States v. Thornsbury, 
    670 F.3d 532
    , 538 (4th Cir.
    2012) (holding that defendant, through his waiver, “assumed the
    risk       of    unforeseen       legal    errors       involving           his    sentence”).
    Moreover,         the    sentencing     claims       asserted     in    counsel’s       Anders
    brief      and    McKenith’s      pro     se    brief   fall      within      the    scope   of
    McKenith’s valid waiver. *
    *
    McKenith notes that his waiver reserved his right to
    appeal from an above-Guidelines sentence and argues that his
    sentence, which was within the Guidelines range calculated by
    the district court, exceeded the Guidelines range that would
    have resulted had his sentencing challenges been sustained.
    However, McKenith’s appellate waiver only reserved “the right to
    appeal from a sentence in excess of the applicable advisory
    Guideline range that is established at sentencing” (Plea
    Agreement (PACER No. 69) at 1-2), not the right to appeal from a
    sentence in excess of the Guidelines range that McKenith
    believes is applicable.   Moreover, the waiver expressly stated
    that it encompassed “any issues that relate to the establishment
    of the advisory Guideline range.” (Id. at 1).
    3
    Pursuant to Anders, we have reviewed the entire record for
    any unwaived meritorious grounds for appeal and have found none.
    Accordingly, we grant the Government’s motion to dismiss and
    dismiss the appeal.         This court requires that counsel inform
    McKenith, in writing, of his right to petition the Supreme Court
    of the United States for further review.                If McKenith requests
    that   a   petition   be   filed,     but   counsel    believes   that    such   a
    petition would be frivolous, counsel may move in this court for
    leave to withdraw from representation.                 Counsel’s motion must
    state that a copy thereof was served on McKenith.                     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.
    DISMISSED
    4
    

Document Info

Docket Number: 15-4105

Judges: Duncan, Keenan, Per Curiam, Thacker

Filed Date: 10/8/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024