United States v. Nana Bartels-Riverson , 546 F. App'x 222 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4248
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NANA BARTELS-RIVERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cr-00005-JKB-1)
Submitted: October 17, 2013 Decided: November 14, 2013
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
William L. Welch, III, Baltimore, Maryland, for Appellant.
Kenneth Sutherland Clark, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nana Bartels-Riverson appeals his conviction and
seventy-one-month sentence imposed following his guilty plea to
possession with intent to distribute one kilogram or more of
heroin, in violation of 21 U.S.C. § 841(a)(1) (2006), and
interstate transport of stolen motor vehicles, in violation of
18 U.S.C. § 2312 (2006). On appeal, Bartels-Riverson’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal
but questioning whether the district court should have imposed a
lower sentence. Bartels-Riverson was notified of his right to
file a pro se supplemental brief but has not done so. The
Government moves to dismiss Bartels-Riverson’s appeal based on
the appellate waiver provision of his plea agreement. For the
reasons that follow, we grant the Government’s motion in part,
deny the motion in part, dismiss in part, and affirm in part.
We review de novo the validity of an appeal waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013),
cert. denied, No. 12-10514, 2013 WL 2370444 (U.S. Oct. 7, 2013).
We generally will enforce a waiver “if the record establishes
that the waiver is valid and that the issue being appealed is
within the scope of the waiver.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir.) (internal quotation marks omitted),
cert. denied, 133 S. Ct. 196 (2012). A defendant’s waiver is
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valid if he agreed to it “knowingly and intelligently.” United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).
“Although the validity of an appeal waiver often
depends on the adequacy of the plea colloquy, the issue
ultimately is evaluated by reference to the totality of the
circumstances.” United States v. Davis, 689 F.3d 349, 355 (4th
Cir. 2012) (internal quotation marks omitted). Relevant
considerations include “the experience and conduct of the
accused, as well as the accused’s educational background and
familiarity with the terms of the plea agreement.” Thornsbury,
670 F.3d at 537 (internal quotation marks omitted). “[A] waiver
is not knowingly or voluntarily made if the district court fails
to specifically question the defendant concerning the waiver
provision of the plea agreement during the Rule 11 colloquy and
the record indicates that the defendant did not otherwise
understand the full significance of the waiver.” Manigan, 592
F.3d at 627 (internal quotation marks omitted).
Here, the court specifically advised Bartels-Riverson
of the terms of his appeal waiver and ensured that he understood
the terms of his plea agreement, including the waiver provision.
Our review of the record reveals that, under the totality of the
circumstances, Bartels-Riverson knowingly and voluntarily waived
his appellate rights. Thus, the waiver is valid and enforceable
as to issues within its scope.
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Under the broad language of the appellate waiver
provision, Bartels-Riverson forfeited all rights to appeal both
his conviction and sentence. An appellate waiver does not
preclude certain non-waivable challenges, however, such as
challenges to a sentence above the statutory maximum or based on
a constitutionally impermissible factor such as race, appeals of
the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel, or claims related to
violations of the right to counsel in proceedings following
entry of the guilty plea. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). Neither Bartels-Riverson nor his
counsel have raised these issues, and our review of the record
discloses no such non-waivable challenge.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues that fall
outside the scope of the waiver. We therefore grant the
Government’s motion to dismiss in part, and dismiss the appeal
as to all waivable challenges to Bartels-Riverson’s conviction
and sentence. We deny the motion to dismiss in part and affirm
as to all non-waivable challenges.
We also deny without prejudice counsel’s motion to
withdraw. This court requires that counsel inform
Bartels-Riverson, in writing, of the right to petition the
Supreme Court of the United States for further review. If
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Bartels-Riverson requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may renew in this court his motion for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Bartels-Riverson.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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