United States v. James Ebron ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4594
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES CALVIN EBRON, a/k/a Calvin James Ebron,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00045-D-1)
Submitted: March 14, 2013 Decided: March 20, 2013
Before KING, GREGORY, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
James Calvin Ebron appeals the 288-month sentence
imposed after he pled guilty to conspiracy to distribute and
possess with intent to distribute more than one kilogram of
heroin and a quantity of marijuana and ecstasy, in violation of
21 U.S.C. § 846 (2006). Ebron’s attorney filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious issues for appeal but questioning
whether the government’s notice of enhancement under 21 U.S.C.
§ 851 (2006) was defective. Ebron filed a supplemental pro se
brief asserting that his drug addiction is a disability that is
legally distinguishable from the crime of drug dealing. The
Government has moved to dismiss the appeal as barred by Ebron’s
waiver of his appellate rights in the plea agreement. We affirm
in part and dismiss in part.
We review the validity of an appellate waiver de novo
and will uphold the waiver if it “is valid and . . . the issue
being appealed is within the scope of the waiver.” United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). After
reviewing the plea agreement and the Fed. R. Crim. P. 11 plea
proceeding, we conclude that Ebron knowingly and voluntarily
waived his right to appeal his sentence and that the sentencing
issue raised on appeal is within the scope of that waiver.
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Accordingly, we grant the government’s motion to dismiss in part
and dismiss the appeal as to Ebron’s sentence.
Because Ebron did not waive the right to appeal his
conviction, we deny the government’s motion to dismiss in part.
We have reviewed the record in accordance with Anders and
conclude that Ebron knowingly and voluntarily entered a valid
guilty plea. See United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991). Further, we have found no unwaived
meritorious issues for appeal. Accordingly, we affirm Ebron’s
conviction.
This court requires that counsel inform Ebron, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Ebron 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 Ebron. 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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