US v. Stephen Hime

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00026-FL-1 Copies to all parties and the district court/agency. [998547110] [10-4763]

US v. Stephen Hime

Doc. 0

Case: 10-4763

Document: 31

Date Filed: 03/17/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4763

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. STEPHEN BRENT HIMES, 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. (5:10-cr-00026-FL-1)

Submitted:

February 22, 2011

Decided:

March 17, 2011

Before KING, KEENAN, and WYNN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.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. Tobin Webb Lathan, OFFICE OF THE UNITED STATES ATTORNEY, 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Unpublished opinions are not binding precedent in this circuit.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

Case: 10-4763

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Date Filed: 03/17/2011

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PER CURIAM: Stephen Brent Himes pleaded guilty, pursuant to a

written plea agreement, to armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006). He was sentenced to

ninety-five months' imprisonment.

On appeal, Himes' counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states there are no meritorious issues for appeal, but questions whether the district court erred in giving adequate U.S. consideration to the impending recency amendment to

Sentencing

Guidelines

Manual

("USSG")

§ 4A1.1

(2009).

Himes has not filed a pro se supplemental brief.

The Government

has moved to dismiss the appeal of Himes' sentence based upon a waiver of appellate rights in his plea agreement. Pursuant to a plea agreement, a defendant may waive his appellate rights. 627 (4th Cir. 2010). United States v. Manigan, 592 F.3d 621, A waiver will preclude appeal of a

specific issue if the waiver is valid and the issue is within the scope of the waiver. 168 (4th Cir. 2005). United States v. Blick, 408 F.3d 162, The question of whether a defendant

validly waived his right to appeal is a question of law that this court reviews de novo. An appellate Manigan, 592 F.3d at 626. is valid if the defendant

waiver

knowingly and intelligently agreed to waive the right to appeal. Id. at 627. To determine whether 2 a waiver is knowing and

Case: 10-4763

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Date Filed: 03/17/2011

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intelligent, circumstances. questions a

this Id.

court

examines if the

the the

totality district of

of

the fully to

Generally, regarding

court

defendant

waiver

his

right

appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. Id.; United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005).

Here, the magistrate judge The

complied with the requirements of Fed. R. Crim. P. 11.

magistrate judge ensured that Himes had read the plea agreement, that counsel explained it to him, and that he understood the consequences of the waiver of appellate rights set forth in the agreement. Accordingly, we grant the Government's motion to

dismiss Himes' appeal of his sentence and dismiss the appeal in part. 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. We

therefore affirm Himes' conviction. This writing, of court requires to that counsel the inform Himes, of in the

the

right

petition

Supreme

Court

United States for further review.

If Himes 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 We dispense with

state that a copy thereof was served on Himes. 3

Case: 10-4763

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Date Filed: 03/17/2011

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oral

argument

because in

the the

facts

and

legal before

contentions the court

are and

adequately

presented

material

argument would not aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART

4