United States v. Autry , 382 F. App'x 325 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN CURTIS AUTRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00051-F-1)
Submitted: May 20, 2010 Decided: June 11, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Brian Curtis
Autry pled guilty to possession with intent to distribute
cocaine and more than fifty grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2006), and possession of firearms in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006). He received a within-Guidelines
sentence of 192 months’ imprisonment. On appeal, his attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), questioning whether Autry’s sentence is reasonable.
Autry was notified of his right to file a pro se supplemental
brief but has not filed such a brief. The United States has
moved to dismiss the appeal in part based on Autry’s waiver in
his plea agreement of his right to appeal the sentence. We
affirm in part and dismiss in part.
A defendant may waive the right to appeal if the
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant during the Rule 11 colloquy
regarding the waiver of his right to appeal, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005); United States v. Wessells, 936 F.2d 165,
167-68 (4th Cir. 1991).
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In his plea agreement, Autry agreed to waive the right
“to appeal whatever sentence is imposed, including any issues
that relate to the establishment of the advisory Guideline
range, reserving only the right to appeal from a sentence in
excess of the applicable advisory Guideline range that is
established at sentencing . . . .” At the Fed. R. Crim. P. 11
hearing, the district court explained the appellate waiver
provision to Autry, and Autry stated that he understood the
appellate rights that he was waiving.
Our de novo review of the record convinces us that
Autry’s waiver is valid and enforceable. Further, the issue he
seeks to raise on appeal, the reasonableness of his sentence,
falls within the scope of the waiver. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). We therefore grant
the United States’ motion to dismiss in part.
In accordance with Anders, we have thoroughly reviewed
the record for any meritorious issues pertaining to Autry’s
convictions and have found none. We accordingly affirm the
convictions and dismiss the appeal insofar as it relates to
Autry’s sentence. This court requires that counsel inform
Autry, in writing, of his right to petition the Supreme Court of
the United States for further review. If Autry requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move this court for leave to
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withdraw from representation. Counsel’s motion must state that
a copy of the motion was served on Autry. 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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