US v. Jerry Davis

Filing 920091015

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5060

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERRY JOSE DAVIS, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00011-JPB-DJJ-2)

Submitted:

October 7, 2009

Decided:

October 15, 2009

Before WILKINSON, KING, and AGEE, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

William T. Rice, Martinsburg, West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jerry Jose Davis seeks to appeal his conviction for distribution of cocaine base, in violation of 18 U.S.C.

§ 841(a)(1), (b)(1)(B) (2006), and the resulting seventy-seven month sentence. On appeal, counsel filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), stating that in his opinion, there are no meritorious issues for review, but questioning whether the district court erred in calculating the guidelines sentencing range by awarding criminal history points for a 1991 bank robbery conviction. Davis was notified of his

right to file a pro se supplemental brief but has not done so. The asserting it Government is barred has by moved Davis's to dismiss the appeal, in the

appellate

waiver

validly entered plea agreement.

Davis's counsel has responded

that the motion to dismiss should be denied because the court is required to conduct an independent review of the record for

meritorious issues in accordance with Anders. 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, 2

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 Davis knowingly and voluntarily waived the right to appeal any sentence within the statutory maximum. The sole issue he raises We therefore United States v. Blick, 408 F.3d 162, 168 (4th

on appeal falls within the scope of this waiver.

grant the 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, the waiver does not

preclude our review of any errors in Davis'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 Davis's conviction. This writing, of court requires to that counsel the inform Davis, of in the

the

right

petition

Supreme

Court

United States for further review.

If Davis requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for 3

leave to withdraw from representation.

Counsel's motion must

state that a copy thereof was served on Davis. 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. DISMISSED IN PART; AFFIRMED IN PART

4