United States v. Gross , 283 F. App'x 997 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH DEVON GROSS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:04-cr-00284-HFF-1)
Submitted: July 22, 2008 Decided: July 24, 2008
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Devon Gross pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(2000) (Count 1); use, carry, and possession of a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c)(1)(A) (West 2000 & Supp. 2008) (Count 2); and
possession with intent to distribute heroin, in violation of 21
U.S.C. 841(a)(1) (2000) (Count 3). Gross was sentenced to a total
of 102 months of imprisonment: forty-two months for Counts 1 and 3,
and sixty months for Count 2, to run consecutively to Counts 1 and
3. On appeal, counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), alleging that there are no
meritorious claims on appeal but raising the following issue:
whether the district court erroneously denied Gross’ motion to
suppress the evidence. For the reasons that follow, we affirm.
A defendant who enters a guilty plea waives the right to
raise a constitutional challenge to his or her conviction, except in
narrow circumstances not presented in this appeal. Tollett
v. Henderson, 411 U.S. 258, 267 (1973). Direct review of an adverse
ruling on a pre-trial motion is available only if the defendant
expressly preserves that right by entering a conditional guilty
plea. Fed. R. Crim. P. 11(a)(2); see Tollett, 411 U.S. at 267(holding entry of guilty plea waives challenges to “the deprivation
of constitutional rights that occurred prior to the entry of the
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guilty plea”); United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.
1990) (“A defendant who enters a guilty plea waives the right to
raise a constitutional challenge to his or her conviction, except in
narrow circumstances.”). Because Gross entered an unconditional
guilty plea to his offenses, he cannot now attack the district
court’s pre-trial decision denying his motion to suppress the
evidence.
We have examined the entire record in this case in
accordance with the requirements of Anders, and find no meritorious
issues for appeal.* Accordingly, we affirm. 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 representation. 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.
AFFIRMED
*
Despite notice, Gross has not filed a pro se supplemental
brief.
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