United States v. James McLean, Jr. , 678 F. App'x 123 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES MARSHALL MCLEAN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:15-cr-00188-JAB-1)
Submitted: February 10, 2017 Decided: February 28, 2017
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John Carlyle Sherrill, III, SHERRILL & CAMERON, PLLC, Salisbury,
North Carolina, for Appellant. JoAnna Gibson McFadden,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Marshall McLean, Jr., seeks to appeal his conviction
and sentence after pleading guilty. McLean’s attorney first
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), concluding there were no meritorious grounds for appeal
but raising sentencing issues. McLean was notified of his right
to file a pro se supplemental brief but has not done so. We
previously ordered the parties to file supplemental briefs
addressing an additional sentencing issue, and McLean’s attorney
has done so. The Government now moves to dismiss the appeal,
contending these sentencing issues are barred by McLean’s waiver
of the right to appeal included in the plea agreement. McLean’s
attorney has filed a response in opposition to the motion.
“Plea bargains rest on contractual principles, and each
party should receive the benefit of its bargain.” United States
v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (internal quotation
marks and citation omitted). “A defendant may waive the right
to appeal his conviction and sentence so long as the waiver is
knowing and voluntary.” United States v. Copeland, 707 F.3d
522, 528 (4th Cir. 2013) (internal quotation marks and citation
omitted). “We review the validity of an appeal waiver de novo,
and will enforce the waiver if it is valid and the issue
appealed is within the scope of the waiver.” Id. (internal
quotation marks and citations omitted).
2
Upon review of the plea agreement and the transcript of the
Fed. R. Crim. P. 11 hearing, we conclude that McLean knowingly
and voluntarily waived his right to appeal his conviction and
sentence, and his sentencing claims are within the scope of the
waiver. Moreover, in accordance with Anders, we have reviewed
the record for any potentially meritorious issues that might
fall outside the scope of the waiver and have found none.
Accordingly, we grant the Government’s motion to dismiss
the appeal. This court requires that counsel inform his or her
client, in writing, of his or her 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.
DISMISSED
3