United States v. Fowler ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4512
ERNEST WELDON FOWLER, a/k/a
Duncie Fowler,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-188)
Submitted: August 18, 1998
Decided: September 21, 1998
Before ERVIN, WILKINS, and MOTZ, Circuit Judges.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Thomas C. Manning, MANNING & CROUCH, Raleigh, North Caro-
lina, for Appellant. Anne Margaret Hayes, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ernest W. Fowler appeals from his conviction for conspiracy to
possess with intent to distribute crack cocaine alleging that the district
court erred by determining that 1500 grams were attributable to him.1
His attorney has filed a brief under Anders v. California, 386 U.S. 738(1967). For the following reasons, we dismiss.
At his plea hearing, Fowler waived his right to appeal his sentence
based upon a waiver-of-appeal-rights provision in his plea agreement.2
Such a waiver is enforceable against a defendant so long as it is "the
result of a knowing and intelligent decision to forego the right to
appeal." United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991).
See also United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
The record reveals that at the plea hearing the district court explicitly
explained to Fowler (and that Fowler understood) that he was waiving
his right to appeal any sentence as contained in his plea agreement,
unless the court departed upwardly from the guideline range estab-
lished at sentencing.3 The record also reveals that the district court
fully complied with the dictates of Fed. R. Crim. P. 11. Finally, Fow-
ler does not raise any grounds beyond the scope of his appellate
waiver. See generally Marin, 961 F.2d at 496 (plea agreement cannot
waive appellate review of a sentence imposed in excess of the statu-
tory maximum or one based on a constitutionally impermissible factor
such as race).
Accordingly we conclude that Fowler knowingly and voluntarily
waived his right to appeal his sentence, see Wessells, 936 F.2d at 167,
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1 Fowler did not file a pro se informal brief.
2 See (JA at p. 11-12 ¶ 2(b)).
3 Fowler was sentenced within his Guideline range to 324 months of
imprisonment.
2
and thus he is foreclosed from contesting the amount of drugs the
court found attributable to him at sentencing. Accordingly, we dis-
miss the appeal. Pursuant to the plan adopted by the Fourth Circuit
Judicial Council in implementation of the Criminal Justice Act of
1964, 18 U.S.C. § 3006A (1994), this court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
for further review. If requested by his client to do so, counsel should
prepare a timely petition for writ of certiorari. If 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 the client. We deny
counsel's motion to withdraw at this time. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED
3