United States v. Frye , 51 F. App'x 429 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4299
JOSEPH LEE FRYE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-01-17)
Submitted: November 21, 2002
Decided: December 2, 2002
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Charleston, West
Virginia, for Appellant. Thomas E. Johnston, United States Attorney,
Paul T. Camilletti, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FRYE
OPINION
PER CURIAM:
Joseph Lee Frye pled guilty pursuant to a plea agreement to being
a convicted felon in possession of ammunition that had been trans-
ported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1)
(2000). Frye’s counsel has filed a brief pursuant to Anders v. Califor-
nia, 386 U.S. 738 (1967), asserting that there are no meritorious
issues for appeal.
Frye signed a written plea agreement in which he agreed to waive
the right to appeal any sentence that was within the statutory maxi-
mum provided for the offense of conviction. A waiver of appeal pro-
vision in a valid plea agreement is enforceable if it results from a
knowing and intelligent decision to forego an appeal. United States
v. Attar, 38 F.3d 727, 731 (4th Cir. 1994); United States v. Wiggins,
905 F.2d 51, 53 (4th Cir. 1990). A waiver is ineffective if the district
court fails to question the defendant about it, United States v. Wes-
sells, 936 F.2d 165, 167-68 (4th Cir. 1991), unless other evidence in
the record shows that the waiver was informed and voluntary. United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). We review de
novo the validity of a waiver. United States v. Brown, 232 F.3d 399,
402-03 (4th Cir. 2000).
Here, Frye signed the plea agreement, agreeing to waive the right
to challenge the sentence with the stated exception. The Government
summarized the plea agreement at the Fed. R. Crim. P. 11 hearing. In
response to the district court’s inquiry, Frye agreed that the right to
appeal his conviction and sentence was expressly waived in the plea
agreement. He did not express dissatisfaction with counsel’s services.
On this record, we find that Frye’s waiver was knowingly and intelli-
gently made. We therefore dismiss the appeal.
We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
We therefore dismiss the appeal. This court requires that counsel
inform her client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
UNITED STATES v. FRYE 3
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 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.
DISMISSED