United States v. Terry Condrey , 501 F. App'x 292 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4375
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY LEE CONDREY, a/k/a Jamil,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00065-JPB-DJJ-1)
Submitted: December 20, 2012 Decided: December 26, 2012
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Tracy Weese, Shepherdstown, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Thomas O.
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Lee Condrey pled guilty, pursuant to a plea
agreement, to aiding and abetting the possession with intent to
distribute cocaine base within 1000 feet of a school. The
district court sentenced Condrey to 210 months’ imprisonment.
On appeal, Condrey’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious issues for appeal, but questioning whether the Fed.
R. Crim. P. 11 hearing was properly conducted and whether
Condrey’s sentence was reasonable. The Government’s brief
raises Condrey’s waiver of his right to appeal his sentence in
his plea agreement. We dismiss in part and affirm in part.
We review de novo whether a defendant has effectively
waived his right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). An appellate waiver must be “the
result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citation
omitted). Generally, if a district court fully questions a
defendant regarding the appellate waiver during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Condrey
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knowingly and voluntarily agreed to the waiver of appellate
rights as set forth in the plea agreement. During the Rule 11
colloquy, the court reviewed the terms of the plea agreement
with Condrey, including the waiver provision providing that
Condrey waived the right to appeal any sentence below or at the
statutory maximum. Condrey affirmed that he understood those
terms. Additionally, Condrey has not contested the waiver’s
validity. Because Condrey was sentenced below the statutory
maximum, we dismiss Condrey’s appeal of his sentence.
The waiver provision, however, does not preclude this
court’s review of Condrey’s convictions. Because Condrey 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
substantially complied with Rule 11’s requirements and committed
no error warranting correction on plain error review.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Condrey’s conviction. This court requires that counsel
inform Condrey, in writing, of his right to petition the Supreme
Court of the United States for further review. As such, we deny
Condrey’s counsel’s motion to withdraw at this time. If Condrey
requests that a petition be filed, but counsel believes that
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such petition would be frivolous, counsel may renew the motion
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Condrey. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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