United States v. Jeffrey Murphy ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4693
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY MATTHEW MURPHY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:11-cr-00014-JLK-1)
Submitted: March 8, 2013 Decided: March 21, 2013
Before DAVIS, WYNN, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Ronald Andrew Bassford, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Matthew Murphy pled guilty, pursuant to a plea
agreement, to possession of firearms by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced to
120 months’ imprisonment. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious grounds for appeal but questioning the
reasonableness of Murphy’s sentence. Murphy was informed of his
right to file a pro se brief but has not done so. The
Government has filed a motion to dismiss this appeal in part on
the ground that Murphy knowingly and intelligently waived the
right to appeal his sentence and conviction. For the reasons
that follow, we dismiss in part and affirm in part.
In his plea agreement, Murphy waived the right to
appeal his sentence and conviction, reserving only the right to
appeal those issues that may not be waived by law. “A defendant
may waive the right to appeal . . . so long as the waiver is
knowing and voluntary.” United States v.
Copeland, F.3d , , 2013 WL 657785, at *5 (4th Cir.
Feb. 25, 2013) (internal quotation marks omitted). 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 and the record reveals that the defendant understood
the full import of the waiver, the waiver is both valid and
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enforceable. Id. A review of the record reveals that the court
determined Murphy was competent to plead guilty, had the
opportunity to discuss his plea agreement with counsel, entered
his guilty plea in the absence of threats or force, and
understood the terms of his appeal waiver. Thus, we conclude
that Murphy validly waived his right to appeal his sentence and
conviction and that the claim raised on appeal falls within the
scope of his waiver. Id. (providing standard). Accordingly, we
grant the Government’s motion to dismiss in part and dismiss the
appeal of Murphy’s sentence and conviction as to any issue for
which waiver is legally permissible.
Although the waiver provision in the plea agreement
precludes our review of most issues related to Murphy’s sentence
and conviction, the waiver does not preclude our review of any
errors that may not be waived and that may be revealed by our
review pursuant to Anders. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005) (naming issues not waived by
appellate waiver). In accordance with Anders, we have reviewed
the record in this case and have found no unwaived meritorious
issues for appeal. We therefore deny in part the Government’s
motion to dismiss and affirm Murphy’s sentence and conviction on
any grounds not encompassed by his knowing and intelligent
appellate waiver.
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This court requires that counsel inform Murphy, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Murphy 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 Murphy. 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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