United States v. Daniels , 358 F. App'x 401 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERVIN WASHINGTON DANIELS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:08-cr-00036-D-1)
Submitted: December 17, 2009 Decided: December 23, 2009
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
David L. Neal, Hillsborough, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ervin Washington Daniels pled guilty pursuant to a
written plea agreement to one count of manufacturing child
pornography in violation of 18 U.S.C.A. § 2251(a) (West Supp.
2009). On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious grounds for appeal, but raising the following issue:
whether the district court imposed an unreasonable sentence by
erring as a matter of law in the application of U.S. Sentencing
Guidelines Manual § 2G2.1(b)(2)(B) (2008), failing to consider
all the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) factors,
failing to adequately explain the sentence imposed, and treating
the unreasonably high advisory Sentencing Guidelines range as
presumptively reasonable. The Government has filed a motion to
dismiss the appeal of Daniels’ sentence on the grounds of
appellate waiver. For the reasons that follow, we dismiss the
appeal of Daniels’ sentence and affirm his conviction.
We grant the Government’s motion to dismiss the appeal
of Daniels’ sentence. See United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992) (providing review standard). The record
reveals that Daniels waived his right to appeal any sentence not
in excess of a sentence imposed within the advisory Sentencing
Guidelines range and that this waiver was reviewed with Daniels
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at his plea hearing, which also revealed that he knowingly and
voluntarily pled guilty to his offense. United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). Because
Daniels’ 360-month sentence was within his properly-calculated
sentencing range; not in excess of the statutory maximum, United
States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); not
imposed for a constitutionally improper reason, United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992); and not in violation
of his Sixth Amendment right to counsel, United States v. Attar,
38 F.3d 727, 732-33 (4th Cir. 1994); we grant the Government’s
motion to dismiss the appeal of Daniels’ sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Daniels’ conviction. This court
requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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