United States v. Alvin Gardner ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Bluefield. David A. Faber, Senior District Judge. (1:18-cr-00194-1)
Submitted: December 17, 2019 Decided: December 19, 2019
Before KING, FLOYD, and HARRIS, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public
Defender, Lorena E. Litten, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. John Lanier
File, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Gardner pled guilty, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea
agreement, to distribution of oxymorphone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2012), and the district court imposed a 151-month sentence pursuant to the agreement.
Appellate 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 questioning whether Gardner’s
sentence is unreasonable. The Government has filed a motion to dismiss the appeal
pursuant to the appeal waiver in the plea agreement. For the reasons that follow, we dismiss
in part and affirm in part.
“The validity of a waiver of appeal . . . is reviewed de novo, and we will enforce the
waiver if it is valid and the issue appealed is within the scope of the waiver.” United States
v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). “In the absence of extraordinary
circumstances, a properly conducted [Fed. R. Crim. P.] 11 colloquy establishes the validity
of the waiver.” Id.We have reviewed the plea agreement and the transcript of the Rule 11 hearing and
conclude that Gardner knowingly and voluntarily pled guilty and waived his right to appeal
his conviction and sentence. Because Gardner waived his right to appeal his sentence, and
because his 151-month sentence falls within the range agreed upon by the parties in the
plea agreement and is within the statutory maximum, we grant the Government’s motion
in part and dismiss his appeal of his sentence. See 18 U.S.C. § 3742(c)(1) (2012).
Pursuant to Anders, we have reviewed the entire record and have found no
meritorious, nonwaived issues for appeal. We therefore affirm Gardner’s conviction. This
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court requires that counsel inform Gardner, in writing, of the right to petition the Supreme
Court of the United States for further review. If Gardner 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 Gardner.
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 IN PART,
AFFIRMED IN PART
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