United States v. Kevin Deese , 590 F. App'x 239 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN RAY DEESE,
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. (7:13-cr-00042-D-1)
Submitted: January 13, 2015 Decided: January 15, 2015
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant. James Bradsher, OFFICE OF THE UNITED
STATES ATTORNEY, Jennifer P. May-Parker, Brian Scott Meyers,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Ray Deese seeks to appeal the criminal judgment
and 252-month sentence imposed after he pleaded guilty to
conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine and 280 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)
(2012); possession of a firearm in furtherance of a drug
trafficking crime and aiding and abetting, in violation of 18
U.S.C. §§ 2, 924(c) (2012); and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(a)(1), (h) (2012).
On appeal, Deese’s 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 plainly erred in conducting Reese’s plea colloquy
or erred in applying a four-level leadership enhancement when
calculating Deese’s sentencing Guidelines range. Deese filed a
supplemental pro se brief, also challenging the enhancement.
The Government has filed a motion to dismiss Deese’s appeal
based on an appellate waiver provision in its written plea
agreement with Deese. Deese opposes the Government’s motion as
premature. We grant the Government’s motion to dismiss in part
and dismiss Deese’s appeal of his sentence, and we deny the
motion in part and affirm Deese’s convictions.
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We review de novo a defendant’s waiver of appellate
rights. United States v. Copeland, 707 F.3d 522, 528 (4th
Cir.), cert. denied, 134 S. Ct. 126 (2013). “A defendant may
waive the right to appeal his conviction and sentence so long as
the waiver is knowing and voluntary.” Id. (internal quotation
marks omitted). Our review of the record leads us to conclude
that, under the totality of the circumstances, Deese’s waiver of
appellate rights was knowing and voluntary and that the waiver
provision is therefore valid and enforceable. See id.; United
States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012)
(providing standard).
We will enforce a valid waiver so long as “the issue
appealed is within the scope of the waiver.” Copeland, 707 F.3d
at 528. We conclude that Deese’s challenge to the calculation
of his Guidelines range falls within the scope of the appellate
waiver provision in the plea agreement. Therefore, we grant the
Government’s motion to dismiss in part and dismiss Deese’s
appeal of his sentence.
The appellate waiver does not, however, preclude our
review of a challenge to the voluntariness of Deese’s plea. See
United States v. Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir.
1994). We have reviewed the plea colloquy for plain error and
conclude that that the district court fully complied with Fed.
R. Crim. P. 11 and properly ensured that Deese’s guilty plea was
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knowing and voluntary and supported by a sufficient factual
basis. We therefore deny in part the Government’s motion to
dismiss and affirm Deese’s convictions.
In accordance with Anders, we have reviewed the entire
record and the issues raised in Deese’s pro se supplemental
brief and have found no unwaived potentially meritorious grounds
for appeal. We therefore affirm Deese’s convictions and dismiss
the appeal of the sentence. This court requires that counsel
inform Deese, in writing, of his right to petition the Supreme
Court of the United States for further review. If Deese
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 Deese. 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
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