US v. Mushulla Nixon
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
November 17, 2009
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Affirmed in part; dismissed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
sentence. with Anders
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
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
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
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
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
process. AFFIRMED IN PART; DISMISSED IN PART
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