United States v. Person , 292 F. App'x 228 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY ANTONIO PERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph R. Goodwin,
Chief District Judge. (6:07-cr-00162-1)
Submitted: August 22, 2008 Decided: September 2, 2008
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Joshua C. Hanks, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Person pled guilty to possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000), and the district court sentenced him as a career offender
to a 151-month term of imprisonment, at the bottom of the advisory
guideline range. On appeal, counsel has filed an Anders1 brief,
noting that Person waived the right to appeal his sentence in the
plea agreement and, thus, there are no meritorious issues for
appeal. In the event this court invalidates the waiver, counsel
asserts that Person’s sentence is unreasonable because the career
offender designation overstates the seriousness of Person’s
criminal history.2 The Government has moved to dismiss the appeal
based upon Person’s waiver of appellate rights. 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. Amaya-Portillo, 423
F.3d 427, 430 (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
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Anders v. California, 386 U.S. 738 (1967).
2
Person has filed a pro se supplemental brief. To the extent
he asserts that counsel provided ineffective assistance, we decline
to review those claims on direct appeal. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006) (providing standard).
We also reject Person’s remaining pro se claims.
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(4th Cir. 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. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that Person
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 preclude
our review of any errors in Person’s conviction that may be
revealed by our review pursuant to Anders. Our review of the
transcript of the plea colloquy leads us to conclude that the
district court substantially complied with the mandates of Rule 11
in accepting Person’s guilty plea and that any omissions did not
affect his substantial rights. The district court ensured that the
plea was entered knowingly and voluntarily and was supported by an
independent factual basis. See United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991). 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 Person’s conviction and
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dismiss the appeal of his sentence. This court requires that
counsel inform the 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
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;
DISMISSED IN PART
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