United States v. Norman Lee , 563 F. App'x 233 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4519
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NORMAN LEE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00493-RWT-1)
Submitted: March 24, 2014 Decided: March 27, 2014
Before MOTZ and SHEDD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring,
Maryland, for Appellant. Arun G. Rao, Christen Anne Sproule,
Steven Edward Swaney, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norman Lee pleaded guilty to conspiracy to possess
with intent to distribute and distribute more than 100 grams of
phencyclidine, in violation of 21 U.S.C. § 846 (2012). The
district court sentenced Lee to 188 months of imprisonment and
he now appeals. Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
Lee’s sentence is reasonable. Lee was informed of his right to
file a pro se supplemental brief but has not done so. In
addition, the Government has filed a motion to dismiss the
appeal based on the waiver in the plea agreement. For the
reasons that follow, we grant the Government’s motion to 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. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
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right to appeal.” Id. at 169 (citation omitted). To determine
whether a waiver is knowing and intelligent, we examine “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 and citation omitted).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy, the waiver is both valid and enforceable. United
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 the district court fully complied with the requirements of
Rule 11. We further conclude that Lee’s waiver of his appellate
rights was knowing and intelligent. The appellate waiver
included Lee’s right to appeal any issues related to his
conviction or the sentence imposed, except a sentence above the
advisory Guidelines range resulting from the finding that he was
a career offender. Here, the district court sentenced Lee to
the low end of that Guidelines range. Therefore, Lee has waived
appellate review of his conviction and sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
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for appeal. Accordingly, we grant the Government’s motion to
dismiss and dismiss the appeal. This court requires that
counsel inform Lee, in writing, of the right to petition the
Supreme Court of the United States for further review. If Lee
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 Lee. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid in the decisional process.
DISMISSED
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