United States v. Kevin Moses ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4156
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN EDWARD MOSES, a/k/a Fats,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:11-cr-00047-GMG-DJJ-1)
Submitted: September 23, 2013 Decided: October 3, 2013
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
for Appellant. William J. Ihlenfeld, II, United States
Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Moses pled guilty, pursuant to a written plea
agreement, to aiding and abetting the distribution of crack
cocaine within 1000 feet of a protected location (an elementary
school) and was sentenced to a within-Guidelines sentence of 262
months’ imprisonment. Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
Moses’ plea was knowingly and voluntarily entered and whether
his sentence is reasonable. Moses filed a pro se supplemental
brief raising additional sentencing issues. 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
affirm the conviction and dismiss Moses’ appeal of his sentence.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). 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. “The
validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to
appeal.” Id. at 169 (citation omitted). To determine whether a
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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). In addition, the purpose of
the Fed. R. Crim. P. 11 colloquy is to ensure that the plea of
guilty is entered into knowingly and voluntarily. See United
States v. Vonn, 535 U.S. 55, 58 (2002). Accordingly, prior to
accepting a guilty plea, a trial court, through colloquy with
the defendant, must inform the defendant of, and determine that
he understands, the nature of the charges to which the plea is
offered, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b). The court also must
determine whether there is a factual basis for the plea. Id.;
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).
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We have thoroughly reviewed the record and conclude
that the district court fully complied with the requirements of
Rule 11. We further conclude that Moses’ guilty plea and waiver
of his appellate rights was knowing, intelligent, and voluntary.
The appellate waiver included Moses’ right to appeal any
sentence imposed, except a sentence above the advisory
Guidelines range. Here, the district court sentenced Moses
within the advisory Guidelines range and, therefore, he has
waived appellate review of his sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the conviction, grant the
Government’s motion to dismiss in part, and dismiss Moses’
appeal of his sentence. This court requires that counsel inform
Moses, in writing, of the right to petition the Supreme Court of
the United States for further review. If Moses 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 Moses. We dispense with
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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.
AFFIRMED IN PART;
DISMISSED IN PART
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