United States v. Graham , 326 F. App'x 147 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-5064
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    GEORGE GRAHAM, III, a/k/a G,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Martinsburg. John Preston Bailey,
    Chief District Judge. (3:08-cr-00049-JPB-DJJ-2)
    Submitted:    May 28, 2009                   Decided:   June 2, 2009
    Before WILKINSON, KING, and GREGORY, Circuit Judges.
    Dismissed in part; affirmed in part by unpublished per curiam
    opinion.
    Jacob A. Manning, DINSMORE & SHOHL, LLP, Wheeling, West
    Virginia, for Appellant.   Thomas Oliver Mucklow, Assistant
    United   States Attorney, Martinsburg,  West Virginia,  for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    George Graham, III, pled guilty pursuant to a written
    plea    agreement     to   possession       with       intent    to    distribute      9.03
    grams    of    cocaine     base     and    was    sentenced       to    46    months      of
    imprisonment.        On appeal, counsel has filed a brief pursuant to
    Anders v. California, 
    386 U.S. 738
     (1967), asserting that there
    are no meritorious grounds for appeal, but raising one issue:
    whether the district court plainly erred by accepting Graham’s
    guilty plea.         Despite notice, Graham has not filed a pro se
    supplemental brief.           For the reasons that follow, we dismiss in
    part and affirm in part.
    There is a pending motion by the Government to dismiss
    the appeal.      We grant the motion in part, noting that the record
    reveals that Graham knowingly and voluntarily waived his right
    to   appeal    his   sentence       in    his    plea    agreement      and   that     this
    waiver   was    specifically        reviewed      by     the    magistrate     judge      at
    Graham’s plea hearing in compliance with Fed. R. Crim. P. 11.
    United States v. Broughton-Jones, 
    71 F.3d 1143
    , 1146 (4th Cir.
    1995);   United      States    v.    Marin,      
    961 F.2d 493
    ,    496   (4th     Cir.
    1992).    Moreover, we find no exceptions to the waiver rule as
    the sentence imposed was not in excess of the statutory maximum,
    United States v. General, 
    278 F.3d 389
    , 399-400 (4th Cir. 2002),
    there    is    no    evidence       that    the    sentence       was     based      on    a
    constitutionally impermissible factor, Marin, 
    961 F.2d at 496
    ,
    2
    and there is no indication that the proceedings were conducted
    in violation of the Sixth Amendment right to counsel.                              United
    States     v.   Attar,    
    38 F.3d 727
    ,    732-33        (4th       Cir.   1994).
    Accordingly, we dismiss the appeal of Graham’s sentence.
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.    Accordingly, we affirm Graham’s conviction.                        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    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
    presented in the materials before the court and argument would
    not aid the decisional process.
    DISMISSED IN PART;
    AFFIRMED IN PART
    3