United States v. Rathbone , 172 F. App'x 533 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4062
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    GLEN RANDELL RATHBONE,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Asheville.  Lacy H. Thornburg,
    District Judge. (CR-02-105)
    Submitted:   February 28, 2006            Decided:   March 28, 2006
    Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, III, Federal Public Defender, William C. Ingram,
    Assistant Federal Public Defender, Greensboro, North Carolina, for
    Appellant. Robert J. Conrad, Jr., United States Attorney, Thomas
    R. Ascik, Assistant United States Attorney, Asheville, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Glen Randell Rathbone appeals his conviction and sentence
    to 235 months in prison and five years of supervised release
    following his guilty plea on one count of conspiracy to possess
    with intent to distribute at least fifty grams of cocaine base in
    violation of 
    21 U.S.C. §§ 841
    , 846 (2000). Rathbone’s attorney has
    filed a brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967), and a letter pursuant to Fed. R. App. P. 28(j), asserting
    there are no meritorious grounds for appeal but raising the issue
    of whether the district court erred under United States v. Booker,
    
    543 U.S. 220
     (2005), when sentencing Rathbone at the low end of a
    stipulated sentencing range.        The Government asserts that Rathbone
    waived his appellate rights.         Rathbone has been informed of his
    right to file a pro se supplemental brief but has not done so.
    Because we conclude Rathbone waived his appellate rights, we affirm
    his conviction and sentence.
    Whether a defendant has effectively waived his right to
    appeal is a matter of law we review de novo.           United States v.
    Blick, 
    408 F.3d 162
    , 168 (4th Cir. 2005).           When the Government
    seeks to enforce a waiver of appellate rights, and there is no
    claim the Government breached the parties’ agreement, we will
    enforce   the   waiver   if   the   record   establishes   the   defendant
    knowingly and intelligently agreed to waive the right to appeal,
    and the issue being appealed is within the scope of the waiver.
    - 2 -
    
    Id. at 168-69
    .     An appeal waiver is not knowing or voluntary if the
    district   court    fails   to   specifically   question   the    defendant
    concerning the waiver and the record indicates that the defendant
    did not otherwise understand its full significance.              See United
    States v. Johnson, 
    410 F.3d 137
    , 151 (4th Cir.), cert. denied, 
    126 S. Ct. 461
     (2005).
    Following his guilty plea, Rathbone objected to the
    amount of cocaine base attributed to him in the presentence report
    and accordingly, to the determination of his base offense level
    under U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2002).
    However, Rathbone and the Government agreed and stipulated to a
    lesser drug amount and final offense level in open court at
    sentencing.      The district court accepted the stipulation and
    sentenced Rathbone to the low end of his stipulated guideline range
    based on the lower drug amount.       Accordingly, Rathbone waived his
    right to appeal this issue.      See United States v. Williams, 
    29 F.3d 172
    , 174-75 (4th Cir. 1994).        Moreover, the parties’ stipulation
    included Rathbone’s explicit waiver of his right to appeal, except
    for claims of ineffective assistance of counsel or prosecutorial
    misconduct, and the district court specifically questioned Rathbone
    concerning the waiver and confirmed his understanding and agreement
    to the waiver at his sentencing hearing.        Rathbone does not allege
    any claims of ineffective assistance or prosecutorial misconduct,
    and no such claims are supported by the record before us on appeal.
    - 3 -
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.   We therefore affirm Rathbone’s conviction and sentence.
    This court requires that counsel inform his client, in writing, of
    his right to petition to 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 presented in the materials before
    the court and argument would not aid the decisional process.
    AFFIRMED
    - 4 -
    

Document Info

Docket Number: 04-4062

Citation Numbers: 172 F. App'x 533

Judges: King, Luttig, Niemeyer, Per Curiam

Filed Date: 3/28/2006

Precedential Status: Non-Precedential

Modified Date: 8/7/2023