United States v. Anthony Braithwaite , 477 F. App'x 989 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4367
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY GERSHEN BRAITHWAITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00023-BO-1)
Submitted: April 25, 2012 Decided: April 27, 2012
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
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Unpublished opinions are not binding precedent in this circuit.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:
Anthony Gershen Braithwaite appeals the 262-month
sentence imposed following his guilty plea to possession with
intent to distribute more than five grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006), and possession of a
firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c) (2006). On appeal, counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious grounds for appeal
but asking this Court to review whether the district court
adequately set forth its rationale for the sentence imposed.
Braithwaite was informed of his right to file a pro se
supplemental brief but has not done so.
The Government seeks to enforce the appellate waiver
provision of the plea agreement and has moved to dismiss the
appeal. Braithwaite asserts that the provision should not be
enforced because of the inherent coercion and duress of the plea
process. We affirm in part and dismiss in part.
We review the validity of a waiver de novo and 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). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
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1992); United States v. Wessells, 936 F.3d 165, 167 (4th Cir.
1991). To determine whether a waiver is knowing and voluntary,
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 omitted). Generally,
if a district court fully questions a defendant regarding the
waiver of appellate rights during the Fed. R. Crim. P. 11
colloquy, the wavier is valid and enforceable. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Our review of the record leads us to conclude that
Braithwaite knowingly and voluntarily waived his right to appeal
his sentence. Braithwaite’s argument to the contrary, based on
the inherent coercion of the plea process, is contrary to our
established precedent. See, e.g., United States v. Wiggins, 905
F.2d 51, 53 (4th Cir. 1990) (“It is clear that a defendant may
waive in a valid plea agreement the right of appeal under 18
U.S.C. § 3742.”); United States v. Brown, 232 F.3d 399, 402
(4th Cir. 2000) (“A defendant can, of course, waive [his]
statutory right to appeal.”). Additionally, we have previously
rejected an “unequal bargaining position” contention with regard
to appellate waivers. See United States v. Cohen, 459 F.3d 490,
495 (4th Cir. 2006). Because the waiver is valid, it precludes
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review of the sentencing issue Braithwaite seeks to raise on
appeal. Accordingly, we grant in part the Government’s motion
to dismiss and dismiss this portion of the appeal.
Braithwaite’s appeal waiver, however, does not
preclude an appeal of his convictions or claims based upon
ineffective assistance of counsel or prosecutorial misconduct.
In accordance with Anders, we have reviewed the entire record in
the case and have found no meritorious issues for appeal outside
the scope of the appellate waiver. We therefore deny in part
the Government’s motion to dismiss and affirm this portion of
the appeal.
This Court requires that counsel inform Braithwaite,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Braithwaite 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 Braithwaite. 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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