US v. Geoffrey Simmons, Jr.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEOFFREY H. SIMMONS, JR., a/k/a Geoffrey Henderson Simmons, Jr., 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. (5:04-cr-00003-FL-1)
March 3, 2009
March 23, 2009
Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, North Carolina, for Appellant. Anne Margaret Hayes, Steve R. Matheny, Assistant United States Attorneys, Frank DeArmon Whitney, United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Geoffrey H. Simmons, Jr., appeals from his convictions and sentence for possession with intent to distribute cocaine, cocaine relation base, to a and marijuana, and possession crime. On of a firearm in
attorney has filed an Anders * brief, noting that Simmons waived the right to appeal his sentence, but questioning whether
Simmons was properly sentenced under United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct. 558 (2007), both of which were decided after Simmons'
Simmons was informed of his right to file a pro se The Government has
supplemental brief, but he has not done so.
filed a motion to dismiss the appeal on the basis of Simmons' waiver of the right to appeal in his plea agreement. A waiver is defendant knowing may and waive the right to appeal if that v.
Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005).
whether a waiver is knowing and intelligent, this court examines "the totality of the circumstances, including the experience and conduct of the accused, as well as the accused's educational background agreement."
United States v. General, 278 F.3d 389, 400 (4th
Anders v. California, 386 U.S. 738 (1967).
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 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. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The transcript of the plea hearing reveals that United
Simmons, a twenty-nine-year-old high school graduate, understood the waiver provision in his plea agreement. In his plea
agreement, Simmons specifically waived the right to challenge his sentence on appeal, reserving only the right to challenge an upward departure from the Guidelines range established at
sentencing, and Simmons averred at his Rule 11 hearing that he read and understood the plea agreement. We therefore conclude
that Simmons knowingly and intelligently waived the right to appeal his sentence. Turning to the scope of the waiver, the sentencing claims Simmons raises on appeal fall within the scope of the waiver right provision. to appeal See id. at in 169-70 plea (holding that waiver of
decision in United States v. Booker, 543 U.S. 220 (2005), was 3
not invalidated by change in law).
Because Simmons' valid and
enforceable waiver of appellate rights precludes review of the sentencing issues raised on appeal, we grant the Government's motion appeal. The waiver provision, however, only waived Simmons' to dismiss in part and dismiss this portion of the
right to appeal his sentence. any errors related to
Defense counsel does not assert guilty plea or convictions.
However, counsel correctly notes in the response to the motion to dismiss that Simmons' appeal waiver does not preclude our review pursuant to Anders. thoroughly meritorious none. examined issues the not In accordance with Anders, we have entire record by the for waiver any and potentially have found
The court fully complied with the mandates of Rule 11 in
accepting Simmons' guilty plea and ensured that the plea was entered knowingly and voluntarily and was supported by an
independent factual basis. F.2d 114, 116, 119-20 to (4th
See United States v. DeFusco, 949 Cir. 1991). part Thus, and we deny the
Thus, the Government's motion to dismiss is granted in part and denied in part, Simmons' appeal of his sentence is dismissed, requires and his counsel convictions inform his 4 are affirmed. in This court 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. 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
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