United States v. Devin Norris , 457 F. App'x 333 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVIN RAY NORRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00051-BO-1)
Submitted: November 29, 2011 Decided: December 14, 2011
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James M. Ayers, II, AYERS & HAIDT, P.A., New Bern, 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Unpublished opinions are not binding precedent in this circuit.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:
Devin Ray Norris appeals his conviction, following his
guilty plea to transporting child pornography, in violation of
18 U.S.C.A. § 2252(a)(2) (West Supp. 2011), and the imposition
of a 144-month term of incarceration and a lifetime term of
supervised release. Norris’ attorney filed his appellate brief
pursuant to Anders v. California, 386 U.S. 738 (1967), averring
that there are no meritorious issues for appeal, but questioning
whether the district court (i) erred in imposing certain special
conditions on Norris’ supervised release or (ii) abused its
discretion in ordering a lifetime term of supervised release.
Although advised of his right to file a pro se supplemental
brief, Norris has not done so. The Government has moved to
dismiss the appeal of Norris’ sentence on the basis of the
waiver of appellate rights contained in Norris’ plea agreement.
For the reasons that follow, we grant the Government’s motion to
dismiss and dismiss the appeal of Norris’ sentence, and we
affirm his conviction.
We first conclude that Norris has waived his right to
appeal his sentence. A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). This court reviews the validity of an appellate waiver
de novo, and will enforce the waiver if it is valid and the
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issue appealed is within the scope thereof. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. To
determine whether a waiver is knowing and intelligent, this
court examines the background, experience, and conduct of the
defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). Based on the totality of circumstances in this
case, we conclude that Norris knowingly and voluntarily entered
into the plea agreement and understood the waiver. See United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
We further conclude Norris’ challenges to the duration
and conditions of his supervised release fall within the scope
of the waiver. According to the plea agreement, Norris waived
his right “to appeal whatever sentence is imposed,” save for a
sentence in excess of the Guidelines range determined at
sentencing. (J.A. 20). * As we have explained, “the term of
supervised release . . . [is] part of the original sentence.”
United States v. Evans, 159 F.3d 908, 913 (4th Cir. 1998); see
18 U.S.C. § 3583(a) (2006) (“The court, in imposing a sentence
to a term of imprisonment for a felony or a misdemeanor, may
*
Citations to “J.A.” refer to the joint appendix submitted
by Appellant.
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include as part of the sentence a requirement that the defendant
be placed on a term of supervised release after imprisonment.”).
Further, the lifetime term of supervised release that the
district court imposed was within Norris’ Guidelines range. See
18 U.S.C. § 3583(k) (2006) (authorizing a term of supervised
release of five years to life for violations of 18 U.S.C.A.
§ 2252); U.S. Sentencing Guidelines Manual (“USSG”) § 5D1.2(b),
(c) (2010) (recognizing a Guidelines term for supervised release
of between five years and life); USSG § 5D1.2(b), p.s.
(recommending the maximum term of supervised release for sex
offenses). Accordingly, we conclude the waiver bars appellate
review of the reasonableness of the term of supervised release
as well as the special conditions ordered, and thus grant the
Government’s motion to dismiss the appeal of Norris’ sentence
The appellate waiver does not, however, preclude
appellate review of Norris’ conviction. Although no challenge
to Norris’ conviction is raised, because this case is before us
pursuant to Anders, we have reviewed the Fed. R. Crim. P. 11
hearing and discern no prejudicial infirmity in that proceeding.
Accordingly, we affirm Norris’ conviction.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We thus grant the Government’s motion to dismiss as
to Norris’ sentence and affirm Norris’ conviction. At this
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time, we deny counsel’s motion to withdraw. This court requires
that counsel inform Norris, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Norris 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
Norris. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
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