US v. John Pierce

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [998354223-2] Originating case number: 2:09-cr-00011-F-1 Copies to all parties and the district court/agency. [998543774] [10-4036]

US v. John Pierce

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Case: 10-4036

Document: 40

Date Filed: 03/14/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4036

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN DAWSON PIERCE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Fox, Senior District Judge. (2:09-cr-00011-F-1)

Submitted:

February 1, 2011

Decided:

March 14, 2011

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Pursuant to a plea agreement, John Dawson Pierce pled guilty to operating a still without a license, in violation of 26 U.S.C. § 5601(a)(4) (2006) (Count Two), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2006) (Count Five). The district court sentenced Pierce to thirty Pierce's counsel filed a brief pursuant

months of imprisonment.

to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but questioning whether the district court procedurally erred in failing

adequately to address Pierce's motion for a variance sentence. Pierce did not file a pro se supplemental brief, although

informed of his right to do so.

The Government has moved to

dismiss Pierce's appeal of his sentence based on the appellate waiver in his plea agreement. In response, Pierce contends that

the Government's motion is premature because this court has not yet conducted its review of the record, as required by Anders. A defendant may waive the right to appeal if that

waiver is knowing and intelligent.

United States v. Poindexter, To determine whether a this court the examines experience "the and

492 F.3d 263, 270 (4th Cir. 2007). waiver is knowing of the and intelligent,

totality

circumstances,

including

conduct of the accused, as well as the accused's educational background and familiarity with 2 the terms of the plea

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agreement."

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

Cir. 2002) (internal quotation marks omitted). Whether a defendant validly waived his right to appeal is a question of law that this court reviews de novo. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United

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 valid and enforceable. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). United States v. We will enforce a

valid waiver when "the issue being appealed is within the scope of the waiver." Id.

Here, Pierce's appeal waiver expressly precluded him from appealing any sentence within the advisory Guideline range established at sentencing. Because the sentence imposed was

within that range, any challenge to the sentence, including the issue raised in Pierce's Anders brief, falls within the scope of the waiver. Moreover, Pierce does not challenge the

voluntariness of his waiver. waiver is enforceable and

Accordingly, we conclude that the grant the Government's motion to

dismiss his appeal of the sentence. The waiver, however, does not preclude our review of the conviction. We have examined the entire record in

accordance with the requirements of Anders and have found no

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unwaived

and

meritorious

issues

for

appeal.

Therefore,

we

affirm Pierce's conviction. This court requires that counsel inform Pierce in

writing of his right to petition the Supreme Court of the United States for further review. If Pierce 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 We dispense with oral

a copy thereof was served on Pierce.

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART

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