United States v. Dwight Ulmer ( 2022 )

USCA4 Appeal: 21-4537 Doc: 23 Filed: 04/18/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4537
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWIGHT ULMER, a/k/a Saybro,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:20-cr-00131-FL-1)
Submitted: April 14, 2022 Decided: April 18, 2022
Before DIAZ and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief
Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Lucy Partain
Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dwight Ulmer pled guilty, pursuant to a written plea agreement, to two counts of
distributing a mixture containing heroin and a fentanyl analog, in violation of 18 U.S.C.
§§ 841(a)(1), (b)(1)(C), and one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced Ulmer to a
within-Guidelines-range sentence of 168 months’ imprisonment. On appeal, Ulmer’s
attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal but questioning whether the sentence is
substantively reasonable. The Government moves to dismiss the appeal pursuant to the
appellate waiver in Ulmer’s plea agreement. Ulmer has filed a pro se supplemental brief,
challenging the procedural and substantive reasonableness of his sentence and claiming
that his appellate waiver applies to his convictions but not his sentence. We affirm in part
and dismiss in part.
We will enforce an appellate waiver if it is valid and the issues raised on appeal fall
within the scope of the waiver. United States v. Dillard, 891 F.3d 151, 156 (4th Cir. 2018).
Upon a review of the record, including the plea agreement and the transcript of the Fed. R.
Crim. P. 11 hearing, we conclude that Ulmer knowingly and voluntarily waived his right
to appeal his sentence and that the sentencing issues he raises on appeal fall squarely within
the scope of the waiver. Accordingly, we grant the Government’s motion to dismiss in
part and dismiss the appeal as to all issues within the waiver’s scope.
In accordance with Anders, we have also reviewed the entire record in this case and
have found no meritorious grounds for appeal outside the scope of Ulmer’s valid appellate
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waiver. We therefore affirm the remainder of the district court’s judgment. This court
requires that counsel inform Ulmer, in writing, of the right to petition the Supreme Court
of the United States for further review. If Ulmer 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 Ulmer as appropriate.
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 in the
decisional process.
AFFIRMED IN PART,
DISMISSED IN PART
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