United States v. Ellerbee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4186
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE MAURICE ELLERBEE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:05-cr-00086-BR)
Submitted: January 16, 2008 Decided: February 7, 2008
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Maurice Ellerbee pled guilty, pursuant to a written
plea agreement, to one count of possession of a firearm after
having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g) (2000), and was sentenced to 120 months imprisonment. On
appeal, Ellerbee asserts that the district court erred in
calculating his base offense level by cross-referencing the drug
trafficking guideline. The Government asserts that Ellerbee
validly waived the right to appeal his sentence in the plea
agreement. We dismiss the appeal.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Amaya-Portillo, 423
F.3d 427, 430 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 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 validly
waived his right to appeal is a question of law that we review de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that
Ellerbee knowingly and voluntarily waived the right to appeal his
sentence. Moreover, the sentencing issue raised on appeal falls
within the scope of the waiver. Accordingly, we dismiss Ellerbee’s
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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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