Filed: Nov. 24, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7243 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN G. HARRIS, Defendant - Appellant.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. (5:05-cr-00041-FPS-JES-1) Submitted: October 28, 2009 Decided: November 24, 2009 Before WILKINSON, MICHAEL, and AGEE, Circuit Judges. Affirmed in part; dismissed in part by unpublis
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7243 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN G. HARRIS, Defendant - Appellant.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. (5:05-cr-00041-FPS-JES-1) Submitted: October 28, 2009 Decided: November 24, 2009 Before WILKINSON, MICHAEL, and AGEE, Circuit Judges. Affirmed in part; dismissed in part by unpublish..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN G. HARRIS,
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. (5:05-cr-00041-FPS-JES-1)
Submitted: October 28, 2009 Decided: November 24, 2009
Before WILKINSON, MICHAEL, and AGEE, 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Affirmed in part; dismissed in part by unpublished per curiam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. Erik S. Goes, Assistant United
States Attorney, Charleston, West Virginia; John Castle Parr,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Harris pled guilty to one count of conspiracy to
possess with intent to distribute five grams or more of cocaine
base, in violation of 21 U.S.C.A. §§ 846, 841(b)(1)(B) (2006),
and was sentenced to forty-six months’ imprisonment. He now
appeals. Harris’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious issues for appeal, but questioning whether the
district court complied with Fed. R. Crim. P. 11 in accepting
Harris’ guilty plea. Harris was advised of his right to file a
pro se supplemental brief but did not do so. The Government has
moved to dismiss, asserting the appeal is precluded by the
waiver of appellate rights in Harris’ plea agreement. We affirm
in part and dismiss in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
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“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169. To determine whether a waiver is
knowing and intelligent, this court examines “the totality of
the circumstances, including the experience and conduct of the
accused, as well as the accused’s educational background and
familiarity with the terms of the plea agreement.” United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks and citation omitted). Generally, if the
district court specifically 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).
Harris knowingly and voluntarily waived his right to
appeal any sentence less than 97 months’ imprisonment, and he
does not challenge his sentence in this appeal. We will enforce
the waiver in our Anders review of the record, however, and
therefore grant the motion to dismiss in part, and dismiss the
appeal to the extent it relates to Harris’ sentence.
The appellate waiver provision does not preclude our
review of the issue raised by counsel on appeal, and we
therefore deny the motion to dismiss in part. Having reviewed
the record, we conclude that the district court complied with
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Rule 11 in accepting Harris’ guilty plea. During the plea
hearing, the district court properly informed Harris of the
rights he was forfeiting as a result of his plea and the nature
of the charges and penalties he faced, found that Harris was
competent and entering his plea voluntarily, and determined
there was a sufficient factual basis for the plea. Therefore,
the record establishes Harris knowingly and voluntarily entered
into his guilty plea with a full understanding of the
consequences and there was no error in the district court’s
acceptance of his plea. We accordingly find no infirmity in
Harris’ conviction.
As required by Anders, we have reviewed the entire
record and have found no unwaived meritorious issues for appeal.
We therefore affirm the appeal in part and dismiss it in part.
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 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 the client. We dispense with oral
argument because the facts and legal contentions are adequately
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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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