Filed: Jun. 05, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4059 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM HIGGINBOTHAM, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:08-cr-00023-FPS-JES-1) Submitted: May 28, 2009 Decided: June 5, 2009 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed in part; dismissed in part by unpubli
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4059 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM HIGGINBOTHAM, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:08-cr-00023-FPS-JES-1) Submitted: May 28, 2009 Decided: June 5, 2009 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed in part; dismissed in part by unpublis..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4059
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM HIGGINBOTHAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:08-cr-00023-FPS-JES-1)
Submitted: May 28, 2009 Decided: June 5, 2009
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. David J. Perri, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William J. Higginbotham, Jr., pled guilty to one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006). He was sentenced to 63
months’ imprisonment. On appeal, counsel has filed a brief
pursuant to Anders v. California,
386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but questioning
whether the district court adequately conducted the Fed. R.
Crim. P. 11 plea hearing. Higginbotham was informed of his
right to file a pro se supplemental brief but has not done so.
The Government has moved to dismiss the appeal, asserting that
Higginbotham validly waived his right to appeal in his plea
agreement. We affirm in part and dismiss in part.
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 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
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conclude that Higginbotham knowingly and voluntarily waived his
right to appeal his sentence. Because Higginbotham’s valid and
enforceable waiver of appellate rights precludes review of any
sentencing issues raised on appeal or conducted by this court
under Anders, we grant, in part, the Government’s motion to
dismiss the appeal of Higginbotham’s sentence.
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 Higginbotham’s conviction
raised by counsel or revealed by our review pursuant to Anders.
Nonetheless, our review of the transcript of the plea colloquy
leads us to conclude the district court fully complied with the
mandates of Rule 11 in accepting Higginbotham’s guilty plea and
ensured that the plea was entered knowingly and voluntarily and
was supported by an independent factual basis. See United
States v. DeFusco,
949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Thus, we deny, in part, the Government’s motion to dismiss and
affirm Higginbotham’s conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Higginbotham’s conviction and
dismiss his appeal of his sentence. This court requires that
counsel inform Higginbotham, in writing, of his right to
petition the Supreme Court of the United States for further
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review. If Higginbotham requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Higginbotham. 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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