United States v. Harris , 224 F. App'x 311 ( 2007 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-5033
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    CALVIN LAMONT HARRIS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Richmond. Richard L. Williams, Senior
    District Judge. (3:05-cr-00425-RLW)
    Submitted:   March 28, 2007                 Decided:   April 25, 2007
    Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed in part; dismissed in part by unpublished per curiam
    opinion.
    James M. Nachman, NACHMAN & SQUIRES, L.L.P., Richmond, Virginia,
    for Appellant.   Olivia N. Hawkins, OFFICE OF THE UNITED STATES
    ATTORNEY, Richmond, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Calvin Lamont Harris appeals his conviction and the
    151-month career offender sentence he received after he pled guilty
    to distributing a quantity of cocaine base (crack).                      
    21 U.S.C. § 841
    (a) (2000); U.S. Sentencing Guidelines Manual § 4B1.1 (2005).
    Harris’    attorney     has     filed   a    brief   pursuant      to    Anders   v.
    California, 
    386 U.S. 738
     (1967), explaining that, in his view,
    there are no meritorious issues for appeal.              Harris has filed a pro
    se   supplemental      brief,     suggesting      that     the   court    erred   by
    increasing his sentence based on prior convictions not charged in
    the indictment.        The government has moved to dismiss the appeal,
    asserting that Harris validly waived his right to appeal his
    sentence in the plea agreement.             We affirm in part and dismiss in
    part.
    A defendant may waive the right to appeal if that waiver
    is knowing and intelligent.         United States v. Blick, 
    408 F.3d 162
    ,
    169 (4th Cir. 2005).            Generally, if the district court fully
    questions a defendant regarding the waiver of his right to appeal
    during    the   Rule    11    colloquy,     the   waiver    is   both    valid    and
    enforceable.      United States v. Johnson, 
    410 F.3d 137
    , 151 (4th
    Cir.), cert. denied, 
    126 S. Ct. 461
     (2005); United States v.
    Wessells, 
    936 F.2d 165
    , 167-68 (4th Cir. 1991).                  The question of
    whether a defendant validly waived his right to appeal is a
    question of law that this court reviews de novo.                 Blick, 408 F.3d
    - 2 -
    at 168.      Our review of the record discloses that Harris knowingly
    and voluntarily waived the right to appeal his sentence. Moreover,
    the issue raised on appeal falls within the scope of the waiver.
    We therefore grant the government’s motion to dismiss, in part, and
    dismiss Harris’ appeal of his sentence.
    Although Harris also waived his right to appeal his
    conviction in the plea agreement, the district court did not
    address this aspect of the waiver of appellate rights during the
    Fed. R. Crim. P. 11 colloquy.          Therefore, the waiver does not
    preclude our review of the record pursuant to Anders for potential
    error relating to the conviction.       Our review of the transcript of
    the plea colloquy reveals that the district court fully complied
    with Rule 11 in accepting Harris’ guilty plea. Therefore, we deny,
    in   part,    the   government’s   motion   to   dismiss,   and   affirm   the
    conviction.
    Pursuant to Anders, we have examined the entire record,
    and Harris’ pro se supplemental brief, and find no meritorious
    issues for appeal.        Accordingly, we affirm the conviction and
    dismiss the appeal of the sentence.              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 such 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
    - 3 -
    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.
    AFFIRMED IN PART;
    DISMISSED IN PART
    - 4 -
    

Document Info

Docket Number: 06-5033

Citation Numbers: 224 F. App'x 311

Judges: Hamilton, Michael, Per Curiam, Wilkinson

Filed Date: 4/25/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023