United States v. Killian , 60 F. App'x 441 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4199
LEROY KILLIAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-93-74, CR-93-80, CA-96-517)
Submitted: March 5, 2003
Decided: March 28, 2003
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Jack M. Knight, Jr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. KILLIAN
OPINION
PER CURIAM:
Leroy Killian appeals from an amended criminal judgment and
248-month sentence following his guilty plea entered in accordance
with a written plea agreement. In November 1993, Killian pled guilty
to four counts relating to bank robbery and unlawful use of a firearm
in violation of 18 U.S.C. §§ 922(g)(I); 924(c)(1); 2113(d)(2000). Kil-
lian’s plea agreement contained a provision stating: "The defendant
knowingly and expressly waives the right to contest either the convic-
tion or the sentence in any post-conviction proceedings, including, but
not limited to, any proceeding under Title 28, United States Code,
Section 2255, except with respect to claims of ineffective assistance
of counsel or prosecutorial conduct." We therefore grant the Govern-
ment’s motion to dismiss the appeal based upon Killian’s waiver of
his appellate rights.
Killian’s appointed counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), asserting that there are no merito-
rious issues presented on appeal but raising the question whether the
district court’s failure to produce a transcript of Killian’s plea hearing
mandated that this Court vacate Killian’s guilty plea and remand for
another plea hearing. Killian also filed a pro se supplemental brief,
raising a similar argument and other issues. The Government filed a
response to the Anders brief, agreeing that no meritorious issues are
presented in Killian’s appeal. Six days later, the Government filed a
motion to dismiss Killian’s appeal, claiming Killian waived his right
to appeal in his plea agreement. Killian’s counsel filed a response to
the motion to dismiss, stating he did not take a position on this issue.
In United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), this
Court held that "a defendant may not appeal his sentence if his plea
agreement contains an express and unqualified waiver of the right to
appeal, unless that waiver was unknowing or involuntary." See also
United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991); United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Killian has pre-
sented no evidence that his decision to substantially waive his appel-
late rights was unknowing or unintelligent. Indeed, when given the
opportunity to withdraw his plea at sentencing, he declined to do so.
UNITED STATES v. KILLIAN 3
Thus, Killian’s appeal is foreclosed by the appellate waiver he
knowingly signed in his plea agreement. The only exceptions to a
valid waiver are for claims of ineffective assistance of counsel and
prosecutorial misconduct. However, Killian does not raise either of
those claims, and we conclude the issues he does assert do not fall
within one of the exceptions to Killian’s valid waiver of appellate
rights.
Accordingly, we grant the Government’s motion to dismiss and
dismiss Killian’s appeal. We deny Killian’s motion to strike the Gov-
ernment’s motion to dismiss. We have examined the entire record in
this case in accordance with the requirements of Anders and find no
meritorious issues for appeal. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client 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 repre-
sentation. Counsel’s motion must state that a copy thereof was served
on the client. 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.
DISMISSED