US v. Mushulla Nixon

Filing 920091119

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5048

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MUSHULLA SALEEM NIXON, a/k/a M'Shulla, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:07-cr-00053-FL-1)

Submitted:

November 17, 2009

Decided:

November 19, 2009

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Douglas E. Kingsbery, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina; Joshua B. Royster, UNITED STATES DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Mushulla Saleem Nixon seeks to appeal his conviction after pleading guilty pursuant to a written plea agreement, for conspiracy to distribute and possess with intent to distribute more than fifty grams of On v. crack appeal, cocaine, counsel 386 and filed U.S. the a resulting brief in

277-month accordance

sentence. with Anders

California,

738

(1967),

stating that in his opinion, there are no meritorious issues for review, but questioning whether appeal waivers are invalid as a matter of law, that Nixon's plea was not knowing and voluntary, and that the the district court committed procedural range. error in

calculating

Sentencing

Guidelines

Specifically,

Nixon contends that the district court erred in overruling his objections to enhancements for his role in the offense,

possession of a firearm, the use of a minor in commission of the offense, the use of drug quantities obtained from his protected statement, and the use of certain prior convictions, which were allegedly part of the relevant conduct, to compute his criminal history score. Nixon was notified of his right to file a pro se

supplemental brief but has not done so. The Government has moved to dismiss the appeal,

asserting that it is barred by Nixon's appellate waiver in the validly entered plea agreement. Nixon's counsel has responded

2

that the motion to dismiss should be denied based on the reasons asserted in the Anders brief. A defendant may waive the right to appeal if that

waiver is knowing and intelligent. 492 F.3d 263, 270 (4th Cir. 2007).

United States v. Poindexter, Generally, if the district

court fully questions a defendant regarding the waiver of his right to appeal during the plea colloquy performed in accordance with Federal Rule of Criminal Procedure 11, 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. Cir. 2005). Our review of the record leads us to conclude that Nixon knowingly and voluntarily waived the right to appeal any sentence that was not above the advisory Sentencing Guidelines range and any issues relating to the establishment of the United States v. Blick, 408 F.3d 162, 168 (4th

Guidelines range.

The sentencing issues Nixon raises on appeal We therefore grant the

fall within the scope of this waiver.

Government's motion to dismiss in part and dismiss this portion of the appeal. Although the waiver provision in the plea agreement precludes our review of the sentence, 3 the waiver does not

preclude our review of any errors in Nixon's conviction that may be revealed pursuant to the review required by Anders. In

accordance with Anders, we have reviewed the entire record and have found no meritorious issues for appeal. We therefore deny

the Government's motion to dismiss in part and affirm Nixon's conviction. This writing, of court requires to that counsel the inform Nixon, of in the

the

right

petition

Supreme

Court

United States for further review.

If Nixon 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 Nixon. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED IN PART; DISMISSED IN PART

4