United States v. Windell Hicks , 439 F. App'x 239 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINDELL NORWOOD HICKS, a/k/a Fly Hicks,
Defendant – Appellant,
v.
DEBBIE LANETT JOHNSON; NAOMI JOHNSON,
Claimants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:09-cr-00009-FL-1)
Submitted: June 29, 2011 Decided: July 13, 2011
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Robert J. McAfee, MCAFEE LAW, P.A., New Bern, 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Unpublished opinions are not binding precedent in this circuit.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:
Windell Norwood Hicks pled guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute, and distribution of, more than fifty grams of crack
cocaine, 21 U.S.C. § 846 (2006), and was sentenced to 160 months
of imprisonment, within his advisory Sentencing Guidelines
range. On appeal, Hicks’ attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious grounds for appeal but questioning whether
the district court erred by overruling Hicks’ objection to the
two-level enhancement he received for possession of a firearm.
Hicks has filed a supplemental pro se brief in which he
challenges the calculation of his criminal history score. The
United States seeks to dismiss the appeal based on the appellate
waiver provision in the plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo, and we will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is valid if the defendant’s agreement to the waiver was knowing
and intelligent. Id. at 169. To determine whether a waiver is
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knowing and intelligent, we examine “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 a district
court fully questions a defendant regarding the waiver of
appellate rights during the Fed. R. Crim. P. 11 colloquy, and
the record indicates that the defendant understood the full
significance of the waiver and was not denied effective
assistance of counsel, the waiver is valid. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
A review of the Rule 11 hearing transcript confirms
that Hicks knowingly and intelligently waived his right to
appeal. In his plea agreement, Hicks explicitly waived the
right to challenge his sentence on appeal, reserving only the
right to appeal based upon grounds of ineffective assistance of
counsel, prosecutorial misconduct, or a sentence in excess of
the applicable Sentencing Guidelines range. Hicks confirmed at
his Rule 11 hearing that he read and understood the plea
agreement. The district court conducted the colloquy required
under Rule 11, ensuring that Hicks understood the charges and
potential penalties and that Hicks was competent to enter the
plea. We therefore conclude that Hicks knowingly and
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intelligently pled guilty and waived the right to appeal his
sentence. The issues Hicks seeks to raise on appeal fall
squarely within the scope of the waiver provision; accordingly,
we grant the Government’s motion to dismiss the appeal as to
Hicks’ sentence.
The waiver provision did not, however, waive Hicks’
right to appeal his conviction. In accordance with Anders, we
have thoroughly examined the entire record for any potentially
meritorious issues not covered by the waiver and have found
none. Therefore we affirm Hicks’ conviction and grant the
Government’s motion to dismiss in part as to Hicks’ sentence.
This court requires that counsel inform Hicks, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Hicks 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 Hicks. 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 IN PART; DISMISSED IN PART
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