United States v. Clinton French ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLINTON KENT FRENCH,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Cameron McGowan Currie, Senior District Judge. (3:17-cr-00671-CMC-1)
Submitted: January 22, 2019 Decided: January 24, 2019
Before MOTZ, KEENAN, and FLOYD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Christopher R. Geel, GEEL LAW FIRM, LLC, Charleston, South Carolina, for
Appellant. John David Rowell, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clinton Kent French appeals his conviction and sentence for possession of a
firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2012), and possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(e) (2012). French pled guilty pursuant to a written plea
agreement and was sentenced to a within-Guidelines sentence of 262 months in prison
and 5 years of supervised release. On appeal, appellate counsel for French filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but seeking review of the voluntariness of French’s guilty
plea and the reasonableness of his sentence. French did not file a pro se supplemental
brief despite notice of his right to do so. The government filed an unopposed motion to
dismiss the appeal as barred by the appellate waiver contained in French’s plea
agreement. We grant the government’s motion.
We review de novo the validity of an appeal waiver. United States v. Copeland,
707 F.3d 522, 528 (4th Cir. 2013). We generally will enforce a waiver “if the record
establishes that the waiver is valid and that the issue being appealed is within the scope of
the waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal
quotation marks omitted). A defendant’s waiver is valid if he “knowingly and
intelligently agreed to it.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).
Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11
hearing, we conclude that French knowingly and voluntarily waived his right to appeal
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his conviction and sentence, with certain specified exceptions. Thus, we conclude that
the waiver is valid and enforceable.
However, even a valid waiver does not waive all appellate claims. Specifically, a
valid appeal waiver does not preclude a challenge to a sentence on the ground that it
exceeds the statutory maximum or is based on a constitutionally impermissible factor
such as race, arises from the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth
Amendment right to counsel in proceedings following the guilty plea. See United States
v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178
(4th Cir. 1993). Moreover, the appellate waiver in French’s plea agreement does not
waive claims alleging ineffective assistance of counsel or prosecutorial misconduct, nor
does it waive claims based on future changes to the law that affect French’s sentence.
The claims raised by counsel on appeal clearly fall within the scope of the broad
appellate waiver, which the government seeks to enforce. In accordance with Anders, we
have reviewed the record in this case and have found no meritorious issues for appeal
outside the scope of the waiver. We therefore grant the government’s motion and dismiss
the appeal in part and affirm the criminal judgment in part. We deny without prejudice
counsel’s motion to withdraw.
This court requires that counsel inform French, in writing, of the right to petition
the Supreme Court of the United States for further review. If French 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
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motion must state that a copy thereof was served on French. 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 the decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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