United States v. Estee Gilstrap , 556 F. App'x 173 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4416
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ESTEE PETE GILSTRAP,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:12-cr—00481-JMC-4)
Submitted: December 19, 2013 Decided: December 23, 2013
Before SHEDD, DAVIS, and FLOYD, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
William I. Bouton, WILKINS & BOUTON, LLC, Greenville, South
Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Estee Pete
Gilstrap pled guilty to possession with intent to distribute 50
grams or more of methamphetamine and using and carrying a
firearm during and in relation to a drug trafficking offense.
In the plea agreement, Gilstrap agreed to waive his right to
appeal his conviction and sentence, except on grounds of
ineffective assistance of counsel or prosecutorial misconduct.
Gilstrap now appeals. His counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious grounds for appeal but questioning the
validity of the guilty plea and the reasonableness of the
sentence. Gilstrap was advised of his right to file a pro se
supplemental brief, but he has not done so. The Government has
filed a motion to dismiss Gilstrap’s appeal based on the
appellate waiver provision in his plea agreement. We dismiss in
part and affirm in part.
In the absence of a motion in the district court to
withdraw a guilty plea, this court’s review of the plea colloquy
is for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). After reviewing the plea agreement and the
transcript of the plea hearing, we conclude that the district
court fully complied with the requirements of Fed. R. Crim. P.
11 when accepting Gilstrap’s guilty plea.
2
We review de novo a defendant’s waiver of appellate
rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted). To determine whether the waiver is knowing and
intelligent, we look “to the totality of the circumstances,
including the experience and conduct of the accused, as well as
the accused’s educational background and familiarity with the
terms of the plea agreement.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks
omitted).
Our review of the record leads us to conclude that
Gilstrap knowingly and voluntarily waived the right to appeal
his sentence. We therefore grant in part the Government’s
motion to dismiss and dismiss the appeal of Gilstrap’s sentence.
The waiver provision, however, does not preclude our direct
review of Gilstrap’s conviction pursuant to Anders.
Accordingly, we have reviewed the entire record and have found
no meritorious issues that are outside the scope of the waiver.
We therefore deny in part the Government’s motion to dismiss and
affirm Gilstrap’s conviction.
3
This court requires that counsel inform Gilstrap, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Gilstrap 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 Gilstrap. 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 IN PART;
AFFIRMED IN PART
4