US v. Robert Miller

Filing 920100520

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4888

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT LEE MILLER, a/k/a Bobby, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:09-cr-00032-FPS-JES-3)

Submitted:

April 22, 2010

Decided:

May 20, 2010

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West Virginia, for Appellant. John C. Parr, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Robert Lee Miller appeals his conviction and sentence of twenty-four months of imprisonment imposed after he pled

guilty, pursuant to a plea agreement, to one count of aiding and abetting the distribution of cocaine base within 1000 feet of a protected location, in violation of 21 U.S.C. §§ 841(a)(1), 860 (2006). On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he states there are no meritorious district issues for in appeal, but questions whether plea the and and

court that

erred his

accepting was

Miller's knowing,

guilty

concluding voluntary.

plea

intelligent,

Miller was advised of his right to file a pro se The Government

supplemental brief, but has not filed a brief.

has moved to dismiss Miller's appeal based upon a waiver of appellate rights in his plea agreement. This court reviews the validity of a waiver de novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a waiver of appellate rights if the waiver is valid and the issue being appealed is covered by the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A

waiver is valid if the defendant's agreement to the waiver was knowing and voluntary. United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). 2

To intelligent, circumstances,

determine this

whether

a

waiver "the

is

knowing of of

and the the

court

examines the

totality and conduct

including

experience

accused, as well as the accused's educational background and familiarity with the terms of the plea agreement." United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks omitted). Generally, if a district court fully

questions a defendant regarding the waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy, the waiver is valid. Wessells, 936 F.2d at 167-68. In this case, Miller does not

assert that his waiver was not voluntary, and our review of the record leads us to conclude that Miller's waiver of his right to appeal was knowing and voluntary and should be enforced to

preclude any review of potential sentencing error. waiver appeal does his not, however, include a waiver of his by

Miller's right to

conviction,

which

counsel

raises

questioning

whether the district court complied with Fed. R. Crim. P. 11 and properly voluntary. Because Miller did not move in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. 517, 525 (4th Cir. 2002). United States v. Martinez, 277 F.3d The record reveals that the district found Miller's plea knowing, intelligent, and

court substantially complied with the requirements of Rule 11 in 3

accepting Miller's guilty plea, and ensured that Miller's plea was knowing and voluntary and supported by a sufficient factual basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20

(4th Cir. 1991). Accordingly, we deny the Government's motion to

dismiss in part and affirm Miller's conviction.

We grant the

motion to dismiss with regard to any potential sentencing error that may be revealed by our review pursuant to Anders. In

accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal that are not encompassed by the appeal waiver. This court requires

that counsel inform Miller, in writing, of the right to petition the Supreme Court of the United States for further review. If

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

contentions the court

would

process. AFFIRMED IN PART; DISMISSED IN PART

4