United States v. Marshall , 403 F. App'x 827 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LAMONT MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:08-cr-00017-FL-1)
Submitted: November 30, 2010 Decided: December 3, 2010
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
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Unpublished opinions are not binding precedent in this circuit.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:
James Lamont Marshall pled guilty to possession of a
firearm after being convicted of a felony, in violation of 18
U.S.C. §§ 922(g)(1) (2006). The district court sentenced
Marshall to a total of 168 months of imprisonment, and Marshall
now appeals. His attorney has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), raising one sentencing issue
but stating that there are no meritorious issues for appeal.
Marshall was informed of his right to file a pro se supplemental
brief, but he did not do so. The Government has filed a motion
to dismiss Marshall’s appeal of his sentence based on Marshall’s
waiver of his right to appeal in the plea agreement. For the
reasons that follow, we affirm in part and dismiss in part.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews
the validity of an appellate waiver de novo and will enforce the
waiver if it is valid and the issue appealed is within the scope
thereof. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). An appeal waiver is valid if the defendant knowingly and
intelligently agreed to the waiver. Id. at 169. Generally, if
the district court fully 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
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States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). We
have thoroughly reviewed the record and conclude that Marshall
knowingly and intelligently waived the right to appeal his
sentence. Because the issue raised on appeal falls within the
scope of the waiver, we grant the Government’s motion to dismiss
in part and dismiss the appeal of Marshall’s sentence.
The waiver, however, does not preclude our review of
the conviction. We have examined the entire record in
accordance with the requirements of Anders and have found no
unwaived and meritorious issues for appeal. We therefore deny
in part the Government’s motion to dismiss and affirm Marshall’
conviction.
This court requires that counsel inform Marshall, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Marshall 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 Marshall. We dispense
with oral argument because the facts and legal contentions are
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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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