United States v. Donnell Parker , 499 F. App'x 297 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4385
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNELL SYLVESTER PARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00047-JPB-DJJ-3)
Submitted: November 30, 2012 Decided: December 14, 2012
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Nicholas J. Compton, Assistant Federal Public Defender, Kristen
M. Leddy, Research and Writing Specialist, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Erin K. Reisenweber, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Donnell
Sylvester Parker pled guilty to distribution of a quantity of
cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C)
(West 1999 & Supp. 2012). In the plea agreement, Parker agreed
to waive all rights to appeal any sentence within the maximum
possible penalty provided in the statute of conviction, as well
as the manner in which any such sentence was determined. Parker
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 whether the
district court committed clear error when it calculated the drug
quantity attributable to Parker as relevant conduct. Parker was
advised of his right to file a pro se supplemental brief, but he
has not filed one. The Government has filed a motion to dismiss
Parker’s appeal based on the appellate waiver provision in
Parker’s plea agreement. We dismiss in part and affirm in part.
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
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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
Parker knowingly and voluntarily waived the right to appeal his
sentence and that the issue his counsel asserts in the Anders
brief is within the scope of the waiver. We therefore grant in
part the Government’s motion to dismiss and dismiss the appeal
of Parker’s sentence. The waiver provision, however, does not
preclude our direct review of Parker’s conviction pursuant to
Anders. We have reviewed the entire record and have found no
issues that are meritorious and outside the scope of the waiver.
We therefore deny in part the Government’s motion to dismiss and
affirm Parker’s conviction.
This court requires that counsel inform Parker, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Parker 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 Parker. We dispense
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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.
DISMISSED IN PART;
AFFIRMED IN PART
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