United States v. John Gibson, III ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4304
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN GIBSON, III, a/k/a Cuddy Mo,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:18-cr-00431-ELH-3)
Submitted: October 15, 2019 Decided: October 17, 2019
Before GREGORY, Chief Judge, and THACKER and RUSHING, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore, Maryland, for
Appellant. Lauren Elizabeth Perry, Paul Anthony Riley, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Gibson, III, seeks to appeal the 84-month sentence imposed following his
guilty plea to conspiracy to distribute and possess with intent to distribute controlled
substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012), and distribution
and possession with intent to distribute controlled substances, in violation of 21 U.S.C.
§§ 841(a)(1); 18 U.S.C. § 2 (2012). Gibson’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), questioning whether Gibson’s sentence is reasonable.
Although informed of his right to file a pro se supplemental brief, Gibson has not done so.
The Government has filed a motion to dismiss the appeal on the ground that
Gibson’s appeal is barred by the appeal waiver included in the plea agreement. We review
de novo the validity of an appeal waiver. United States v. Cohen, 888 F.3d 667, 678 (4th
Cir. 2018). Where, as here, the Government seeks to enforce the appeal waiver and has
not breached the plea agreement, we will enforce the waiver if it is valid and the issue being
appealed falls within the waiver’s scope. United States v. Manigan, 592 F.3d 621, 627 (4th
Cir. 2010). A defendant validly waives his appeal rights if he agreed to the waiver
“knowingly and intelligently.” Id. To determine whether a waiver is knowing and
intelligent, “we consider the totality of the circumstances, including the experience and
conduct of the defendant, his educational background, and his knowledge of the plea
agreement and its terms.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir.) (internal
quotation marks omitted), cert. denied, 139 S. Ct. 494 (2018). Generally, “if a district court
questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.]
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11 colloquy and the record indicates that the defendant understood the full significance of
the waiver, the waiver is valid.” Id. (internal quotation marks omitted).
Upon review of the plea agreement and the transcript of the Rule 11 hearing, we
conclude that Gibson knowingly and voluntarily waived his right to appeal and that his
challenge to his sentence falls squarely within the compass of the appellate waiver.
Accordingly, we grant the Government’s motion in part.
Pursuant to Anders, we have reviewed the entire record and have found no
meritorious issues for appeal that fall outside the scope of the appeal waiver. We therefore
affirm the remainder of the district court’s judgment. This court requires that counsel
inform Gibson, in writing, of the right to petition the Supreme Court of the United States
for further review. If Gibson 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
Gibson.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
DISMISSED IN PART
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