United States v. Bruce Nott ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4114
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE WILLIAM NOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:13-cr-00055-F-1)
Submitted: September 5, 2014 Decided: September 15, 2014
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
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Unpublished opinions are not binding precedent in this circuit.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:
Bruce William Nott seeks to appeal the lifetime term
of supervised release imposed by the district court following
his guilty plea to receipt of child pornography, in violation of
18 U.S.C. § 2252(a)(2) (2012). On appeal, Nott’s 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 lifetime term of supervised release is
substantively reasonable. Nott was advised of his right to file
a pro se supplemental brief but did not file one. The
Government has filed a motion to dismiss Nott’s appeal based on
the appellate waiver provision in the plea agreement. Nott’s
counsel opposes the Government’s motion as premature. We grant
in part the Government’s motion and dismiss Nott’s appeal of his
sentence, and we deny in part the Government’s motion and affirm
Nott’s conviction.
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 his 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). Our review of the record leads us to conclude that,
under the totality of the circumstances, Nott’s waiver of
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appellate rights was knowing and voluntary, and the waiver
provision is therefore valid and enforceable. See United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (providing
standard).
We will enforce a valid waiver so long as “the issue
being appealed is within the scope of the waiver.” Blick, 408
F.3d at 168. We conclude that the sentencing issue raised in
the Anders brief falls within the scope of the appellate waiver
provision, as Nott did not specifically exempt from the waiver
any right to appeal from the supervised release term imposed by
the district court. Therefore, we grant in part the
Government’s motion to dismiss and dismiss this portion of the
appeal.
The waiver provision does not, however, preclude our
review of Nott’s conviction pursuant to Anders. We have
reviewed the plea colloquy for plain error and have found none.
See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002)
(providing for plain error standard of review); see also United
States v. Olano, 507 U.S. 725, 732 (1993) (detailing plain error
standard).
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. We therefore deny in part the Government’s
motion to dismiss and affirm Nott’s conviction. This court
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requires that counsel inform Nott, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Nott requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Nott. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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