US v. Geoffrey Simmons, Jr.

Filing 920090323

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6467

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)

Submitted:

March 3, 2009

Decided:

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Affirmed in part; dismissed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

drug

trafficking

appeal,

Simmons'

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'

sentencing.

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.

intelligent.

United

States

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

To determine

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."
*

and

familiarity

with

the

terms

of

the

plea

United States v. General, 278 F.3d 389, 400 (4th

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

2

Cir.

2002)

(internal

quotation

marks

and

citation

omitted).

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

sentence

agreement

accepted

before

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.

Simmons'

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

covered

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

Government's convictions.

motion

dismiss

in

affirm

Simmons'

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

that

client,

writing,

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

5