United States v. Dishea Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DISHEA MARSEAN DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. W. Earl Britt,
Senior District Judge. (2:10-cr-00033-BR-1)
Submitted: September 28, 2012 Decided: October 31, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Leslie Carter Rawls, Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Dishea Marsean Davis appeals from his conviction and
120-month sentence following his guilty plea, pursuant to a plea
agreement, to conspiracy to distribute and to possess with
intent to distribute more than fifty grams of cocaine base and a
quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2006). Davis’ counsel 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 the plea
was voluntarily entered and whether the sentence imposed
violates the law or Davis’ constitutional rights. Davis was
advised of his right to file a pro se supplemental brief but did
not do so. Upon our initial review of the appeal, we directed
supplemental briefing regarding the adequacy of the district
court’s explanation of its sentence, and Davis filed a
supplemental brief arguing that the district court failed to
explain its sentence. The Government has now moved to dismiss,
asserting that the appeal is precluded by the waiver of
appellate rights in Davis’ plea agreement. We grant the motion
in part, 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. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district
court fully questions a defendant regarding the waiver of his
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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. General, 278
F.3d 389, 400-01 (4th Cir. 2002). Whether a defendant validly
waived his appeal rights is a question of law that this court
reviews de novo. Manigan, 592 F.3d at 626.
Our review of the record leads us to conclude that
Davis knowingly and voluntarily waived the right to appeal his
sentence and that the issues he asserts are within the scope of
the waiver. We therefore grant in part the Government’s motion
to dismiss, and dismiss the appeal of Davis’ sentence.
The waiver provision, however, does not preclude our
direct review of Davis’ conviction pursuant to Anders. We have
reviewed the entire record and have found no issues that are
meritorious and outside the scope of the waiver. We therefore
deny in part the Government’s motion to dismiss and affirm
Davis’ conviction.
This court requires that counsel inform Davis, in
writing, of his 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
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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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