United States v. Fernard Jordan ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNARD LEE JORDAN, a/k/a Fernando Lee Jordan,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:10-cr-00171-REP-1)
Submitted: July 28, 2011 Decided: August 1, 2011
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Reginald M. Barley, Richmond, Virginia, for Appellant. Richard
Daniel Cooke, Fernando Groene, Assistant United States
Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernard Lee Jordan pled guilty to possession with
intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C.A. § 841(a), (b)(1)(B)(ii) (West 1999 & Supp. 2011).
The district court sentenced him to 108 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but noting that Jordan asserted
that he was arrested on an invalid warrant and also sought to
challenge the drug quantity attributed to him and the district
court’s decision to sentence him at the top, rather than the
bottom of the advisory Guidelines range. Jordan was informed of
his right to file a pro se supplemental brief but has not done
so. The Government has moved to dismiss the appeal based upon
Jordan’s waiver of his 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. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). 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 (4th Cir. 2005); United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991). The question of whether a
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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
Jordan 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 Jordan’s appeal from his
sentence.
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 Jordan’s conviction that
may be revealed by our review pursuant to Anders. Our review of
the transcript of the plea colloquy convinces us that the
district court fully complied with the mandates of Rule 11 in
accepting Jordan’s guilty plea. 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). To the extent that
Jordan seeks to challenge the validity of the arrest warrant,
this issue was waived by his guilty plea. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973); United States v. Willis,
992 F.2d 489, 490 (4th Cir. 1993). We therefore deny the
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Government’s motion to dismiss the appeal from the conviction,
and affirm Jordan’ 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 Jordan’s conviction
and dismiss the appeal of his sentence. This court requires
that counsel inform his 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 renew his motion 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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