United States v. Poindexter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5029
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WALTER ORILEY POINDEXTER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:03-cr-00213-WDQ-1)
Submitted: August 17, 2009 Decided: September 2, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Michael E. Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, 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Unpublished opinions are not binding precedent in this circuit.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:
Walter Oriley Poindexter pled guilty pursuant to a
plea agreement to distribution of heroin, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2006), and aiding and
abetting, in violation of 18 U.S.C. § 2 (2006), and was
sentenced to 168 months in prison. Poindexter did not
immediately file a direct appeal but after this court considered
Poindexter’s appeal of the district court’s order denying his 28
U.S.C. § 2255 (West Supp. 2009) motion and determined that a
waiver of appellate rights in a plea agreement does not absolve
counsel of the duty to file an appeal upon request, see United
States v. Poindexter, 492 F.3d 263, 271-73 (4th Cir. 2007),
Poindexter filed this belated but timely appeal pursuant to
Anders v. California, 386 U.S. 738 (1967). In the Anders brief,
counsel states that there are no legitimate grounds for appeal,
but questions the validity of Poindexter’s career offender
classification as a possible issue for review. Poindexter filed
a pro se supplemental brief, in which he challenges only his
Guidelines range calculation. The Government moves to dismiss
the appeal, asserting that Poindexter waived his right to appeal
his sentence in his plea agreement.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Poindexter
knowingly and voluntarily waived his right to appeal his
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sentence so long as it was a within-Guidelines sentence.
Further, because neither counsel nor Poindexter raise any issues
outside the scope of the waiver, we enforce the agreement’s
terms and grant the Government’s motion to dismiss the appeal as
to Poindexter’s sentence. Because the appellate waiver pertains
only to Poindexter’s sentence, however, we have reviewed his
convictions pursuant to Anders. Having done so, we find no
meritorious issues for appeal. Accordingly, although we dismiss
this appeal to the extent it seeks review of Poindexter’s
sentence, we affirm as to Poindexter’s convictions.
This court requires that counsel inform Poindexter, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Poindexter requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Poindexter. 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 in the decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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