Filed: Dec. 13, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5112 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY EARL ARTIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (5:11-cr-00014-H-1) Submitted: November 30, 2012 Decided: December 13, 2012 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5112 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY EARL ARTIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (5:11-cr-00014-H-1) Submitted: November 30, 2012 Decided: December 13, 2012 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curia..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY EARL ARTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00014-H-1)
Submitted: November 30, 2012 Decided: December 13, 2012
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Earl Artis pled guilty pursuant to a plea
agreement to one count of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924 (2006). He was sentenced to fifty-two months’ imprisonment,
and has noted this appeal. Artis’ attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious issues for appeal, but questioning
whether the district court erred in denying Artis’ motion to
dismiss the indictment. Artis was advised of his right to file
a pro se supplemental brief but has not done so. Upon our
initial review of the appeal, we directed supplemental briefing
regarding whether either of Artis’ North Carolina convictions
for eluding arrest with a motor vehicle qualifies as a crime of
violence under U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A) (2011). The Government has now moved to
dismiss the appeal, asserting that Artis’ plea agreement
contained a waiver of the right to appeal his sentence. Artis
opposes the motion. We grant the motion in part, 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. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). Whether a defendant validly
2
waived his appeal rights is a question of law that we review de
novo. Id. at 626. The validity of a waiver is assessed under
the totality of the circumstances, id. at 627, but if the
district court questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy, the
waiver is generally found to be valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. General,
278 F.3d 389, 400-01 (4th Cir. 2002).
Our review of the record leads us to conclude that
Artis knowingly and voluntarily waived the right to appeal a
sentence, like the one imposed here, that is within the scope of
the Guidelines range, and that the supplementally briefed issue
is within the scope of that waiver. We therefore grant in part
the Government’s motion to dismiss, and dismiss the appeal of
Artis’ sentence.
The waiver does not preclude review of whether the
district court erred in denying Artis’ pro se motion to dismiss
the indictment charging him as a felon in possession of a
firearm. In reviewing the denial of a motion to dismiss an
indictment, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).
3
In his pro se motion, Artis relied on our decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc)
(holding that consideration of hypothetical aggravating factors
and criminal history is inappropriate when determining whether
prior offense constitutes felony). A review of Artis’ criminal
history reveals he was convicted of receiving stolen property of
a value greater than $1000 in Delaware, in violation of Del.
Code Ann. tit. 11 § 851.3, a Class G felony punishable by up to
two years’ imprisonment. Del. Code Ann. tit. 11 § 4205(b)(7).
In view of this conviction, Artis is not entitled to relief
under Simmons, and we find that the district court did not err
in denying his pro se motion to dismiss the indictment.
The waiver provision also does not preclude our review
of Artis’ conviction pursuant to Anders. We have reviewed the
entire record and have found no issues that are meritorious and
outside the scope of the waiver. We therefore deny in part the
Government’s motion to dismiss and affirm Artis’ conviction.
This court requires that counsel inform Artis, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Artis 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
4
state that a copy thereof was served on Artis. 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 IN PART;
AFFIRMED IN PART
5
