United States v. Kenneth Bass, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH EUGENE BASS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00496-RDB-1)
Submitted: September 10, 2012 Decided: September 20, 2012
Before AGEE, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Arthur S. Cheslock, Baltimore, Maryland, for Appellant. Harry
Mason Gruber, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Eugene Bass, Jr., appeals his convictions and
the 195-month sentence imposed by the district court following
his unconditional guilty plea, pursuant to a written plea
agreement, to conspiracy to distribute and possess with intent
to distribute 500 grams or more of cocaine and fifty grams or
more of cocaine base, in violation 21 U.S.C. § 846 (2006), and
possession of a firearm in furtherance of drug trafficking
offenses, in violation of 18 U.S.C. § 924(c) (2006). On appeal,
Bass’ counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious
grounds for appeal but questioning the adequacy of the guilty
plea colloquy, whether the district court’s sentence was proper,
and whether Bass’ trial counsel was ineffective. Bass filed a
pro se supplemental brief challenging his arrest and the vehicle
search, the adequacy of the plea colloquy, and the calculation
of his Sentencing Guidelines range, and arguing that he received
ineffective assistance of counsel. The Government has filed a
motion to dismiss Bass’ appeal of his sentence based on the
appellate waiver provision in the plea agreement. We grant the
Government’s motion and dismiss Bass’ appeal of his sentence,
and we affirm Bass’ convictions.
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
omitted); see United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (providing standard). Generally, if the district
court fully questions the defendant about the waiver during the
Federal Rule of Criminal Procedure 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
Bass’ waiver of appellate rights was knowing and intelligent.
Turning to the scope of the waiver, we conclude that the
sentencing issues Bass raises in the Anders brief and the pro se
supplemental brief fall within the scope of the appellate waiver
provision. Bass was sentenced to 195 months’ imprisonment, a
sentence within the sentencing range contemplated in the plea
agreement. Thus, we grant the Government’s motion to dismiss
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Bass’ appeal of his sentence and dismiss this portion of the
appeal.
The waiver provision does not, however, preclude our
review of Bass’ convictions pursuant to Anders. We have
reviewed the plea colloquy for plain error and have found none.
See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002)
(providing standard); see also United States v. Olano, 507 U.S.
725, 732 (1993) (detailing plain error standard). Further, Bass
waived the majority of his remaining pro se claims by entering
an unconditional and voluntary guilty plea. See Haring v.
Prosise, 462 U.S. 306, 320 (1983) (“[A] guilty plea results in
the defendant’s loss of any meaningful opportunity he might
otherwise have had to challenge the admissibility of evidence
obtained in violation of the Fourth Amendment.”); Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents
a break in the chain of events which has preceded it in the
criminal process.”); United States v. Willis, 992 F.2d 489, 490
(4th Cir. 1993) (“[A] guilty plea constitutes a waiver of all
nonjurisdictional defects, including the right to contest the
factual merits of the charges.”) (internal citation and
quotation marks omitted).
The waiver provision also does not preclude our review
of Bass’ ineffective assistance of counsel claims. Nonetheless,
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we decline to consider those claims on direct appeal because the
record does not conclusively demonstrate that counsel was
ineffective. United States v. Martinez, 136 F.3d 972, 979 (4th
Cir. 1998) (providing standard); see Strickland v. Washington,
466 U.S. 668, 688, 694 (1984) (providing elements of ineffective
assistance claim).
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. We therefore affirm Bass’ convictions. This
court requires that counsel inform Bass, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Bass requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Bass. 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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