United States v. Jeffrey Lesane ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY LYNN LESANE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00099-FL-2)
Submitted: March 5, 2013 Decided: March 13, 2013
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeffrey Lesane pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 18 U.S.C.
§ 846 (2006), and was sentenced to sixty months’ imprisonment.
On appeal, Lesane’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
Lesane’s sentence is substantively reasonable. Lesane was
advised of his right to file a pro se supplemental brief but did
not do so. The Government has moved to dismiss, asserting the
appeal is precluded by the waiver of appellate rights in
Lesane’s plea agreement. We dismiss in part and affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent, as assessed under the
totality of the circumstances. United States v. Manigan, 592
F.3d 621, 627 (4th Cir. 2010). 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 States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005); United States v. General, 278 F.3d
389, 400-01 (4th Cir. 2002). Whether a defendant validly waived
his appeal rights is a question of law that this court reviews
de novo. Manigan, 592 F.3d at 626.
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Our review of the record leads us to conclude that
Lesane knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant in part the Government’s motion to
dismiss, and dismiss the appeal of Lesane’s sentence.
The waiver provision, however, does not preclude this
court’s review of Lesane’s conviction. Because Lesane did not
move to withdraw his guilty plea in the district court or raise
any objections to the Rule 11 colloquy, we review the colloquy
for plain error. United States v. Martinez, 277 F.3d 517, 527
(4th Cir. 2002). We find that the district court complied with
Rule 11’s requirements. Accordingly, we affirm Lesane’s
conviction.
This court requires that counsel inform Lesane, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Lesane 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 Lesane. 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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