United States v. Terry Tomblin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4447
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY TOMBLIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:13-cr-00032-1)
Submitted: December 26, 2013 Decided: January 14, 2014
Before MOTZ, AGEE, and FLOYD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. William Bryan King, II, Steven Loew,
Assistant United States Attorneys, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Tomblin pled guilty, pursuant to a written plea
agreement, to possessing a firearm as a convicted felon, 18
U.S.C. § 922(g) (2012), and was sentenced to 38 months’
imprisonment. In the plea agreement, Tomblin agreed to waive
his right to appeal his conviction and sentence, except a
sentence exceeding the statutory maximum of ten years’
imprisonment.
On appeal, Tomblin’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether Tomblin’s sentence is greater than necessary
to achieve the purposes of sentencing set forth in 18 U.S.C.
§ 3553(a)(2) (2012). Although informed of his right to file pro
se supplemental brief, Tomblin has not done so. The Government
has moved to dismiss Tomblin’s appeal based on the appellate
waiver provision in his plea agreement. We dismiss in part and
affirm in part.
We review a defendant’s waiver of appellate rights de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya–Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
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omitted). Generally, if the district court fully questions the
defendant about the waiver during the Fed. R. Crim. P. 11 plea
colloquy, the waiver is valid and enforceable. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We will enforce a
valid waiver so long as “the issue being appealed is within the
scope of the waiver.” Blick, 408 F.3d at 168.
Our review of the record leads us to conclude that
Tomblin’s waiver of appellate rights was knowing and
intelligent. Therefore, we grant the Government’s motion to
dismiss Tomblin’s appeal as to his sentence and dismiss this
portion of the appeal. 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 Tomblin’s
conviction that may be revealed pursuant to the review required
by Anders. In accordance with Anders, we have reviewed the
entire record and have found no meritorious issues that are
outside the scope of the appeal waiver. We therefore affirm the
district court’s judgment as to all issues not encompassed by
Tomblin’s valid waiver of his right to appeal. This court
requires that counsel inform Tomblin, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Tomblin 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
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representation. Counsel’s motion must state that a copy thereof
was served on Tomblin. 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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