United States v. Dawson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CAREY DAWSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:08-cr-00280-1)
Submitted: October 23, 2009 Decided: February 10, 2010
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Samuel D. Marsh,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carey Dawson pled guilty, via a written plea
agreement, to possession of a firearm while addicted to a
controlled substance, in violation of 18 U.S.C. § 922(g)(3)
(2006) and 18 U.S.C.A. § 924(a)(2) (West 2006 & Supp. 2008).
The district court sentenced him to forty-six months’
imprisonment. On appeal, counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal given the appellate waiver
in Dawson’s plea agreement, but raising the issue of whether
Dawson’s sentence was reasonable. Although informed of his
right to do so, Dawson did not file a pro se supplemental brief.
The Government has moved to dismiss the appeal on the basis of
the waiver. Dawson’s counsel has filed a response but does not
challenge the voluntariness of the waiver; rather, he urges the
court to review the appeal pursuant to Anders.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). 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. United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005); United States v. Wessells, 936 F.2d 165,
167-68 (4th Cir. 1991). The question of whether a defendant
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validly waived his right to appeal is a question of law that
this court reviews de novo. United States v. Blick, 408 F.3d
162, 168 (4th Cir. 2005).
We have reviewed the record and conclude Dawson
knowingly and voluntarily waived the right to appeal any
sentence that did not exceed the advisory guidelines range
corresponding to offense level twenty-six. Dawson received a
sentence within this specified range and the sole sentencing
issue he raises on appeal falls within the scope of this waiver.
We therefore grant the Government’s motion to dismiss in part
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 Dawson’s conviction that
may be revealed pursuant to the review required by Anders. In
accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We
therefore deny the Government’s motion to dismiss in part and
affirm Dawson’s conviction.
This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such filing would
be frivolous, then counsel may move in this court for leave to
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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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