United States v. Ludolph

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4555
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS R. LUDOLPH, a/k/a Denny,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00003-FPS-JES-1)
Submitted: December 15, 2009 Decided: December 17, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Lisa M. Hawrot, DINSMORE & SHOHL, LLP, Wheeling, West Virginia,
for Appellant. John Castle Parr, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis R. Ludolph pled guilty to conspiracy to
distribute oxycodone and was sentenced to 151 months in prison.
Ludolph’s counsel has filed a brief, pursuant to Anders v.
California, 386 U.S. 738 (1967), explaining that she found no
meritorious grounds for appeal, but suggesting that the court
review the adequacy of the Fed. R. Crim. P. 11 hearing.
Although informed of his right to do so, Ludolph has not filed a
pro se supplemental brief. The Government moves to dismiss the
appeal on the basis of Ludolph’s waiver of appellate rights
contained in his plea agreement. Finding no error, 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. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005).
The district court informed Ludolph of the waiver at
the Rule 11 hearing, and Ludolph stated that he understood.
Moreover, Ludolph stated that he read and understood the plea
agreement, which contained an explicit waiver of the right to
appeal from his sentence, except in certain limited
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circumstances not relevant here. On appeal, Ludolph does not
challenge the voluntariness or the validity of the waiver.
Therefore, we find that Ludolph knowingly and intelligently
waived the right to appeal his sentence. However, because
Ludolph only waived the right to appeal his sentence, and not
his conviction, we grant the Government’s motion in part, deny
it in part, and consider counsel’s issue on the merits.
Turning to Ludolph’s challenge to the Rule 11 hearing,
the record reveals that the district court fully complied with
the Rule 11 requirements during the plea colloquy, ensuring that
Ludolph’s plea was knowing and voluntary, that he understood the
rights he was giving up by pleading guilty and the sentence he
faced, and that he committed the offense to which he was
pleading guilty. Because no error was committed during the Rule
11 hearing, and since Ludolph’s plea was knowing, voluntary, and
supported by a sufficient factual basis, we affirm his
conviction.
We have carefully reviewed the record in accordance
with Anders and have found no meritorious issues for appeal not
covered by the waiver. Accordingly, we affirm Ludolph’s
conviction and dismiss the appeal of his sentence. This court
requires that counsel inform Ludolph in writing of his right to
petition the Supreme Court of the United States for further
review. If Ludolph requests that a petition be filed, but
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counsel believes that such a petition would be frivolous, then
counsel may motion this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on Ludolph. 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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