United States v. Antonio Blanding , 548 F. App'x 885 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4367
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO BLANDING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. W. Earl Britt, Senior
District Judge. (4:12-cr-00098-BR-1)
Submitted: December 17, 2013 Decided: December 19, 2013
Before KING, GREGORY, and WYNN, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Blanding pled guilty, pursuant to a written
plea agreement, to possession of a firearm as a convicted felon,
18 U.S.C. § 922(g) (2012), and was sentenced to seventy months
of imprisonment, the bottom of his properly-calculated
Sentencing Guidelines range. In the plea agreement, Blanding
agreed to waive his right to appeal his sentence unless his
sentence exceeded his advisory Sentencing Guidelines range and
for any claims of ineffective assistance of counsel or
prosecutorial misconduct. On appeal, Blanding’s attorney has
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’s cross-
reference, under U.S. Sentencing Guidelines Manual
§ 2K2.1(c)(1)(A) (2012), was correct because the gun at issue
was unrelated to the heroin also found in Blanding’s home.
Despite notice, Blanding did not file a pro se supplemental
brief.
The Government has moved to dismiss Blanding’s appeal
based on the appellate waiver provision in his plea agreement.
We dismiss in part and affirm in part. We review a defendant’s
waiver of appellate rights de novo. 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
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intelligent decision to forgo the right to appeal. United
States v. Amaya–Portillo, 423 F.3d 427, 430 (4th Cir. 2005).
Generally, if the district court fully questions the defendant
about the waiver during the Fed. R. Crim. P. 11 plea colloquy,
the waiver is valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). We will enforce a valid
waiver so long as the issue being appealed is within the scope
of the waiver. Blick, 408 F.3d at 168. Our review of the
record leads us to conclude that Blanding’s waiver of appellate
rights was knowing and intelligent. Therefore, we grant the
Government’s motion to dismiss Blanding’s appeal as to his
sentence and dismiss this portion of the appeal.
The waiver provision does not, however, preclude our
duty to review Blanding’s conviction. Our Anders review,
however, reveals no meritorious issues that are outside the
scope of the appeal waiver. We therefore affirm the district
court’s judgment as to all issues not encompassed by Blanding’s
valid waiver of his right to appeal. This court requires that
counsel inform Blanding, in writing, of his right to petition
the Supreme Court of the United States for further review. If
Blanding 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
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Blanding. 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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