United States v. Kent ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4852
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYAN KEITH KENT, a/k/a “B”, a/k/a Big Bryan,
a/k/a Brian,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:05-cr-00075-WCB)
Submitted: April 25, 2007 Decided: May 24, 2007
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Robert E. Barrat, Martinsburg, West Virginia, for Appellant.
Thomas Oliver Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryan Keith Kent appeals his conviction and 247-month
sentence imposed after he pled guilty, pursuant to a plea
agreement, to possession with intent to distribute 44.72 grams of
crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000). On
appeal, counsel has filed an Anders1 brief, stating there are no
meritorious issues for appeal but suggesting that counsel provided
ineffective assistance, that the district court erred in
designating Kent as a career offender, and that Kent’s sentence is
too long. The Government has moved to dismiss the appeal,
asserting that Kent validly waived the right to appeal his sentence
in the plea agreement. We affirm in part and dismiss in part.
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.), cert. denied, 126 S. Ct. 461 (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. Blick, 408 F.3d at 168.
1
Anders v. California, 386 U.S. 738 (1967).
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Our review of the record leads us to conclude that Kent
knowingly and voluntarily waived the right to appeal his sentence.
Moreover, the sentencing issues raised on appeal fall within the
scope of the waiver. We therefore grant, in part, the Government’s
motion to dismiss and dismiss this portion of the appeal.
Although the waiver provision in the plea agreement
precludes our review of the sentence, the waiver does not prevent
our review of any errors in Kent’s conviction that may be revealed
by our review pursuant to Anders.2 Our review of the transcript of
the plea colloquy leads us to conclude that the district court
fully complied with the mandates of Rule 11 in accepting Kent’s
guilty plea. Thus, we deny, in part, the Government’s motion to
dismiss and affirm the conviction.
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 Kent’s conviction and
dismiss the appeal of his sentence. This court requires that
counsel inform his client, in writing, of the 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 frivolous, then counsel may move in this
2
We decline to review Kent’s ineffective assistance of counsel
claim on direct appeal as counsel’s ineffectiveness does not
conclusively appear from the record. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir.) (providing standard),
cert. denied, 126 S. Ct. 1407 (2006).
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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 AND DISMISSED IN PART
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