United States v. Kelly , 251 F. App'x 260 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cr-00222-CCB)
Submitted: October 18, 2007 Decided: October 23, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Richard T. Brown, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Kelly appeals his conviction and twenty-two-
year sentence imposed following his guilty plea to conspiracy and
interference with commerce by robbery and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 1951 (2000), and using, carrying, and
brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C.A. §§ 2, 924(c)(1)(A)(ii) (West Supp. 2007).
Kelly’s attorney filed a brief pursuant to Anders v. California,
386 U.S. 738, 744 (1967), stating that there were no meritorious
issues for appeal, but asserting that the plea was entered under
duress and therefore questioning the validity of Kelly’s conviction
and waiver of his right to appeal the sentence. Kelly was informed
of his right to file a pro se supplemental brief, but he has not
done so. We affirm Kelly’s convictions and dismiss the appeal of
his sentence.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Blick, 408 F.3d 162,
169 (4th Cir. 2005). 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. Wessells, 936 F.2d 165, 167-68 (4th
Cir. 1991). The question of whether a defendant validly waived his
right to appeal is a question of law that we review de novo.
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Blick, 408 F.3d at 168. Our review of the record leads us to
conclude that Kelly knowingly and voluntarily waived the right to
appeal whatever sentence was imposed. We therefore dismiss Kelly’s
appeal of his sentence.
Although the waiver provision in the plea agreement
precludes our review of the sentence, it does not preclude our
review of any errors in Kelly’s convictions that may be revealed by
our review pursuant to Anders. We find that Kelly’s guilty plea
was knowingly and voluntarily entered after a thorough hearing
pursuant to Rule 11. Kelly was properly advised of his rights, the
offenses charged, the mandatory minimum sentence, and maximum
sentence for the offenses. The court also determined that there
was an independent factual basis for the plea and that the plea was
not coerced or influenced by any promises. See United States v.
DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991). Kelly’s unsupported
claims of duress or coercion are insufficient to overcome his sworn
statements to the contrary made during the plea hearing. See id.
at 119; United States v. Morrow, 914 F.2d 608, 613-14 (4th Cir.
1990). We affirm Kelly’s convictions.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the waiver. We therefore affirm Kelly’s convictions,
and dismiss his appeal of his sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
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Supreme Court of the United States for further review.
Accordingly, we deny counsel’s motion to withdraw from
representation. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel then may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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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