US v. Daryl Barrow

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00090-JPB-DJJ-1 Copies to all parties and the district court/agency. [998545978] [10-4840]

US v. Daryl Barrow

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Case: 10-4840

Document: 36

Date Filed: 03/16/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4840

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DARYL SCOTT BARROW, Defendant ­ Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:09-cr-00090-JPB-DJJ-1)

Submitted:

February 15, 2011

Decided:

March 16, 2011

Before AGEE, DAVIS, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Kristen Leddy, Research and Writing Specialist, L. Richard Walker, Senior Litigator, FEDERAL PUBLIC DEFENDER OFFICE, Clarksburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Thomas O. Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Daryl Scott Barrow pled guilty, pursuant to a written plea agreement, of 21 to one count of distribution of heroin, (West in

violation

U.S.C.A.

§ 841(a)(1),

(b)(1)(C)

2006

& Supp. 2010). ninety-six 11(c)(1)(C), month and

The parties stipulated in the agreement to a prison the sentence, see Fed. R. Crim. Barrow P. in

district

court

sentenced

accordance with the agreement.

On appeal, Barrow's counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether the district court committed plain error by failing to calculate Barrow's Guidelines range under the U.S. Sentencing Guidelines Manual (2009). The Government seeks

enforcement of Barrow's waiver of appellate rights in the plea agreement. A We dismiss in part and affirm in part. defendant may waive the right to appeal if that

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

United States v. Poindexter, Generally, if the district

court fully questions a defendant regarding the waiver of his right to appeal during the plea colloquy performed in accordance with Fed. R. Crim. P. 11, the waiver is both valid and

enforceable.

See United States v. Johnson, 410 F.3d 137, 151

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(4th Cir. 2005).

The question of whether a defendant validly

waived his right to appeal is a question of law that this court reviews de novo. (4th Cir. 2005). Our review of the record leads us to conclude that Barrow knowingly and voluntarily waived the right to appeal his sentence. dismiss the We therefore of grant the Government's request and United States v. Blick, 408 F.3d 162, 168

appeal

Barrow's

sentence.

Although

Barrow's

appeal waiver insulates his sentence from appellate review, the waiver does not preclude our consideration of the validity of Barrow's conviction in accordance with Anders. In remainder of accordance the with in Anders, this we have and reviewed have found the no

record

case

meritorious issues for review.

We therefore affirm Barrow's This court

conviction and dismiss the appeal of his sentence.

requires that counsel inform Barrow, in writing, of the right to petition review. the If Supreme Barrow Court of the that United a States be for further but

requests

petition

filed,

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 Barrow.

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

would

process. DISMISSED IN PART; AFFIRMED IN PART

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