United States v. Kevin Davis , 688 F. App'x 180 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN WAYNE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. John T. Copenhaver, Jr., District Judge. (2:15-cr-00119-1)
Submitted: April 24, 2017 Decided: May 3, 2017
Before TRAXLER, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Schles, Charleston, West Virginia, for Appellant. Lisa Grimes Johnston, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Wayne Davis appeals his 151-month sentence imposed by the district court
after his guilty plea to possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2) (2012). Davis’ attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding there are no meritorious grounds for appeal
but questioning whether Davis’ sentence is reasonable. Although notified of his right to
file a pro se brief, Davis has not done so. The Government has moved to dismiss the
appeal as barred by the appeal waiver in Davis’ plea agreement. We dismiss the appeal.
We review de novo the validity of an appeal waiver. United States v. Copeland,
707 F.3d 522, 528 (4th Cir. 2013). A defendant’s waiver is valid if he agreed to it
“knowingly and intelligently.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir.
2010). An appeal waiver generally is enforceable “if the record establishes that the
waiver is valid and that the issue being appealed is within the scope of the waiver.”
United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal quotation marks
omitted).
Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11
hearing, we conclude that Davis knowingly and voluntarily waived his right to appeal and
that the sentencing issues Davis seeks to raise on appeal fall squarely within the scope of
his waiver of appellate rights. 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. See Copeland, 707 F.3d at 530. Accordingly, we grant the
Government’s motion to dismiss the appeal.
2
This court requires that counsel inform Davis, in writing, of the right to petition
the Supreme Court of the United States for further review. If Davis 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 Davis. 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.
DISMISSED
3