United States v. Brenda Curry ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4569
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRENDA SUE CURRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:10-cr-00102-FL-1)
Submitted: January 29, 2013 Decided: February 1, 2013
Before KING, DUNCAN, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Diana Lynn Stavroulakis, Pittsburgh, Pennsylvania, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Brenda Sue Curry
pled guilty to two counts of willful failure to file income tax
returns, in violation of 26 U.S.C. § 7203 (2006), and the
district court sentenced her to six months’ imprisonment. Curry
now appeals. Her counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning whether the
district court lacked jurisdiction, whether Curry’s guilty plea
was knowing and voluntary, whether Curry’s waiver of appellate
rights was knowing and voluntary, and whether the district court
imposed a reasonable sentence. Curry was advised of her right
to file a pro se supplemental brief, but she has not filed one.
The Government has filed a motion to dismiss Curry’s appeal of
her sentence based on the appellate waiver provision in the plea
agreement. We dismiss in part and affirm in part.
We review de novo a defendant’s waiver of appellate
rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive [her] right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted). To determine whether the waiver is knowing and
intelligent, we look “to the totality of the circumstances,
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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
omitted).
Our review of the record leads us to conclude that
Curry knowingly and voluntarily waived the right to appeal her
sentence. The issue raised by Curry’s counsel questioning
whether the district court imposed an unreasonable sentence is
within the scope of the waiver. We therefore grant in part the
Government’s motion to dismiss and dismiss the appeal of Curry’s
sentence.
The waiver provision, however, only bars Curry’s
appeal of her sentence and does not preclude our review of her
convictions. Pursuant to Anders, we have reviewed the entire
record and have found no unwaived issues that are meritorious
and outside the scope of the waiver. The transcript of the Fed.
R. Crim. P. 11 hearing reveals that Curry entered her guilty
plea knowingly and voluntarily. Although the district court did
not inform Curry of the right to counsel at every stage of the
proceeding, the right against compelled self-incrimination, and
the sentencing process, these omissions did not affect her
substantial rights. See United States v. Massenburg, 564 F.3d
337, 342-43 (4th Cir. 2009) (discussing plain error standard of
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review). Finally, we readily conclude that the district court
possessed jurisdiction over the offense with which Curry was
charged. See 18 U.S.C. § 3231 (2006). We therefore deny in
part the Government’s motion to dismiss and affirm the
convictions.
This court requires that counsel inform Curry, in
writing, of her right to petition the Supreme Court of the
United States for further review. If Curry 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 Curry. 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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