United States v. Locklear

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4997
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH LOCKLEAR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:08-cr-00140-D-1)
Submitted: August 19, 2010 Decided: August 26, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
G. Ryan Willis, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Kenneth Locklear pled guilty, pursuant to a written
plea agreement, to conspiracy to distribute and possession with
intent to distribute five kilograms or more of cocaine and a
quantity of marijuana. He was sentenced to 324 months’
imprisonment. On appeal, Locklear raises several sentencing
issues and asserts that his waiver of appellate rights was not
knowing and voluntary. The Government has moved to dismiss
Locklear’s appeal as barred by the plea agreement’s waiver of
appellate rights.
This court reviews the validity of an appellate waiver
de novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir.
2000), and will uphold a waiver of appellate rights if the
waiver is valid and the issue being appealed is covered by the
waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). A waiver is valid if the defendant’s agreement to the
waiver was knowing and voluntary. United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992); United States v. Wessells, 936
F.2d 165, 167 (4th Cir. 1991).
To determine whether a waiver is knowing and
voluntary, this court examines “the totality of the
circumstances, including the experience and conduct of the
accused, as well as the accused’s educational background and
familiarity with the terms of the plea agreement.” United
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States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks omitted). Generally, if a district court fully
questions a defendant regarding the waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.
Wessells, 936 F.2d at 167-68.
Our review of the record leads us to conclude that
Locklear, who was sentenced within the advisory Guidelines
range, knowingly and voluntarily waived the right to appeal any
sentence that was not above the advisory Guidelines range and
any issues relating to the establishment of the Guidelines
range. We further conclude that the sentencing issues Locklear
raises on appeal fall within the scope of this waiver. We
therefore grant the Government’s motion to dismiss the appeal.
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.
DISMISSED
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