US v. Morris

Filing 920071023

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4464

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ENNOS MORRIS, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (1:06-cr-00096-IMK)

Submitted:

October 18, 2007

Decided:

October 23, 2007

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West Virginia, for Appellant. Zelda Elizabeth Wesley, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ennos Morris pled guilty to aiding and abetting in the distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) (2000), 18 U.S.C. § 2 (2000). sentenced supervised assessment.1 Morris to 92 and months' ordered The district court three $100 years of

imprisonment, payment of a

release,

statutory

Morris' counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that there are no meritorious district grounds for in appeal, but questioning his whether to the the

court

erred

overruling

objections

presentence investigation report that his criminal history was overstated, and asserting that his sentence was unreasonable. Morris, pro se, joins his attorney in claiming that his objections to his presentence investigation report were valid, and that his sentence was unreasonable. his partial waiver of He further challenges the validity of appeal rights, on the ground of

his

ineffective assistance of counsel. The Government has moved to dismiss the appeal, asserting that because Morris validly waived his right to appeal any sentence based on a base offense level of twenty-six or less in his plea

The probation officer calculated an advisory sentencing guideline range for Morris of 92 to 115 months' imprisonment, founded on a base offense level of 26, from which he then deducted three levels for acceptance of responsibility, for a resultant total offense level of 23, and a criminal history category of VI. - 2 -

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agreement, we lack jurisdiction over the appeal. 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. Amaya-Portillo, 423 Generally, if the district court

F.3d 427, 430 (4th Cir. 2005).

fully questions a defendant regarding the waiver of his right to appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 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 we review de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of the record leads us to conclude that Morris knowingly and voluntarily waived the right to appeal his sentence.2 Moreover, the sentencing issues raised on appeal fall within the scope of the waiver. We therefore grant, in part, the Government's motion to dismiss the sentencing portion of the appeal. Although the waiver provision in the plea agreement precludes our review of the sentence, we note that Morris did not waive his right to appeal his conviction. Thus the waiver does not

preclude our review of any error in Morris' conviction that may be

As there is no ineffective assistance of counsel found on the face of the record, we decline to consider Morris' claim on direct appeal. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). - 3 -

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revealed by our review pursuant to Anders.

Our review of the

transcript of the plea colloquy leads us to conclude that the district court fully complied with the mandates of Rule 11 in accepting Morris' guilty plea. Thus, we deny, in part, the

Government's motion to dismiss and affirm Morris' conviction. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues not covered by the waiver. We therefore affirm Morris' conviction and We further deny, as moot, the

dismiss the appeal of his sentence. Government's motion for stay.

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 We dispense

state that a copy thereof was served on the client.

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

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