United States v. Thompson , 394 F. App'x 10 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4301
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STACEY THOMPSON, a/k/a Stacy Thompson,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00125-IMK-1)
Submitted: August 26, 2010 Decided: September 1, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Shawn Angus Morgan, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stacey Thompson appeals his conviction and sentence,
following his guilty plea to one count of being a felon in
possession of a firearm while on pretrial release, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 3147 (2006). Thompson’s
attorney filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that in his opinion, Thompson’s appeal
presents no meritorious issues, but asking this court to
consider whether Thompson’s plea was knowing and voluntary.
Thompson was advised of his right to file a pro se supplemental
brief, but has not filed a brief. The Government has moved to
dismiss the appeal on the basis of the waiver of appellate
rights contained in Thompson’s plea agreement.
We review the validity of an appellate waiver de
novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir.
2000), and will uphold a waiver of appellate rights if the
waiver is valid and the issue being appealed is covered by the
waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). A waiver is valid if the defendant’s agreement to the
waiver was knowing and voluntary. United States v. Wessells,
936 F.2d 165, 167 (4th Cir. 1991).
To determine whether a waiver is knowing and
voluntary, we examine “the totality of the circumstances,
including the experience and conduct of the accused, as well as
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the accused’s educational background and familiarity with the
terms of the plea agreement.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks
omitted). Generally, if the district court fully questions a
defendant regarding the waiver of appellate rights during the
Fed. R. Crim. P. 11 colloquy, the waiver is valid. Wessells,
936 F.2d at 167-68. Our review of the record discloses that
Thompson’s appellate waiver was knowing and voluntary and should
be enforced to preclude our review of any potential sentencing
errors pursuant to Anders. The waiver, however, does not
preclude our review of Thompson’s conviction.
Because Thompson did not move in the district court to
withdraw his guilty plea, any error in the Fed. R. Crim. P. 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). Our review of the record
convinces us that the district court fully complied with the
requirements of Rule 11 in accepting Thompson’s guilty plea, and
ensured that Thompson’s plea was knowing and voluntary and
supported by a sufficient factual basis. See United States v.
DeFusco, 949 F.2d 114, 116-20 (4th Cir. 1991).
Accordingly, we deny the Government’s motion to
dismiss in part and affirm Thompson’s conviction. We grant the
motion to dismiss with regard to any potential sentencing error
that may be revealed by our review pursuant to Anders. In
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accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues. We therefore
affirm Thompson’s conviction. This court requires that counsel
inform Thompson, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Thompson 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
Thompson. 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 IN PART;
AFFIRMED IN PART
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