US v. Ricky Seabolt

Filing 920081118

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4263

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICKY RAY SEABOLT, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:05-cr-00032-REM-JSK-1)

Submitted:

November 13, 2008

Decided:

November 18, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Stephen Donald Warner, Assistant United States Attorney, Elkins, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ricky Ray Seabolt pled guilty to aiding and abetting the attempted manufacture of methamphetamine, and the district court sentenced him to a 168-month term of imprisonment. On

appeal, counsel has filed an Anders 1 brief, concluding that there are no meritorious issues for appeal, but questioning whether the district court erred in calculating Seabolt's Guidelines

range and in choosing an appropriate sentence.

The Government

has moved to dismiss the appeal based upon Seabolt's waiver of appellate rights in his plea agreement. 2 Although informed of

his right to do so, Seabolt has not filed a pro se supplemental brief. We affirm in part and dismiss in part. A waiver is defendant knowing may and waive the right to appeal if that v.

intelligent.

United

States

Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005).

Generally,

if the district court 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 The to

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). question of whether a defendant validly waived his right

1 2

Anders v. California, 386 U.S. 738 (1967).

Seabolt waived the right to appeal "any sentence, or the manner in which it was determined, on any ground whatever."

2

appeal is a question of law that we review de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our Seabolt was review informed of of the the Rule 11 hearing of the discloses waiver and that its

nature

potential consequences and that he understood. the waiver valid and enforceable. Moreover,

Thus, we find the sentencing We

issues raised on appeal fall within the scope of the waiver.

therefore grant, in part, the Government's motion to dismiss and dismiss this portion of the appeal. Although the waiver provision in the plea agreement precludes our review of the sentence, the waiver does not

preclude our review of any errors in Seabolt's conviction that may be revealed by our review pursuant to Anders. Nonetheless,

our review of the transcript of the plea colloquy leads us to conclude entered that the district and court ensured and that the plea by was an

knowingly

voluntarily

was

supported

independent factual basis. See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991). Thus, we deny, in part, the Government's motion to dismiss and affirm the 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 Seabolt's conviction This court requires

and dismiss the appeal of his sentence.

that counsel inform the client, in writing, of the right to 3

petition review.

the

Supreme

Court

of

the

United

States

for

further

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. was served on

Counsel's motion must state that a copy thereof 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