United States v. Ernest Augustus Hawkins , 458 F. App'x 241 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST AUGUSTUS HAWKINS, a/k/a Gus Hawkins,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:10-cr-00322-D-1)
Submitted: December 1, 2011 Decided: December 15, 2011
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Daniel K. Dorsey, Washington, D.C., for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Augustus Hawkins pled guilty pursuant to a plea
agreement to conspiracy to interfere with commerce by robbery,
in violation of 18 U.S.C. § 1951 (2006), and was sentenced to
240 months in prison. Counsel has filed an appeal pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that he believes there are “no legal issues that were not
properly raised or disposed of by the district court, and there
are no grounds for an appeal in this case[.]” Although counsel
also states that Hawkins believes the district court violated
Fed. R. Crim. P. 11 when it accepted his guilty plea and erred
when it sentenced him to 240 months in prison, counsel concedes
that the district court did not violate Rule 11 and that
Hawkins’ sentence is reasonable. Hawkins has not filed a pro se
supplemental brief despite receiving notice of his right to do
so. The Government moves to dismiss the appeal as to Hawkins’
sentence based on the appellate waiver in Hawkins’ plea
agreement. We affirm in part, and dismiss in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. See United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent
review of the record supports the conclusion that Hawkins
voluntarily and knowingly waived his right to appeal his
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sentence. Thus, we conclude that the waiver is valid and
enforceable.
However, even a valid waiver does not waive all
appellate claims. Specifically, a valid appeal waiver does not
preclude a challenge to a sentence on the ground that it exceeds
the statutory maximum or is based on a constitutionally
impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
guilty plea. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993). Moreover, the appellate waiver in Hawkins’ plea
agreement did not waive: (1) any challenges he may have if his
sentence were above the Guidelines range calculated at
sentencing; (2) certain ineffective assistance of counsel or
prosecutorial misconduct claims; or (3) any claims Hawkins may
have pertaining to his conviction. Hawkins’ sentence is within
the Guidelines range calculated at sentencing and he raises no
claims that fall outside the scope of his appellate waiver.
Thus, we grant the Government's motion to dismiss the
appeal as to Hawkins’ sentence. Although we are charged under
Anders with reviewing the record for unwaived error, we have
reviewed the record in this case and have found no unwaived
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meritorious issues for appeal. We therefore dismiss the appeal
in part and affirm in part. This court requires that counsel
inform Hawkins, in writing, of his right to petition the Supreme
Court of the United States for further review. If Hawkins
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Hawkins. 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 in the decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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