US v. Nicholas Wheeler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting in part Motion to dismiss appeal [998610915-2] Originating case number: 5:10-cr-00165-BO-1 Copies to all parties and the district court/agency. [998742445].. [10-5255]

Appeal: 10-5255

Document: 30

Date Filed: 12/13/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5255

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS WHEELER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:10-cr-00165-BO-1)

Submitted:

September 19, 2011

Decided:

December 13, 2011

Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

G. Alan DuBois, 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Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-5255

Document: 30

Date Filed: 12/13/2011

Page: 2 of 3

PER CURIAM:
Nicholas Wheeler pleaded guilty, pursuant to a written
plea agreement, to one count of possession of a firearm by a
convicted
(2006).
prison

felon

in

violation

of

18

U.S.C.

§§ 922(g)(1),

924

The district court imposed a sentence of 100 months in
followed

by

three

years

of

supervised

release.

On

appeal, Wheeler’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states that he
could find no meritorious issues not precluded by the appeal
waiver in Wheeler’s plea agreement.

Wheeler was notified of his

right to file a pro se supplemental brief but has not done so.
The Government moved to dismiss the appeal to the extent it is
precluded by the appeal waiver in Wheeler’s plea agreement.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Wheeler
knowingly

and

sentence.
squarely
grant

The
within

the

voluntarily
issue
the

waived

raised
compass

Government’s

in
of

motion

his

right

Wheeler’s
the
to

Anders

waiver.
dismiss

to

appeal
brief

his
falls

Accordingly,
the

appeal

as

we
to

Wheeler’s sentence.
The waiver provision did not, however, waive Wheeler’s
right to appeal his conviction.

In accordance with Anders, we

have thoroughly examined the entire record for any potentially
meritorious issues outside the scope of Wheeler’s appeal waiver.
2

Appeal: 10-5255

Document: 30

Date Filed: 12/13/2011

We have found no such issues.

Page: 3 of 3

Therefore, we affirm Wheeler’s

conviction and grant the Government’s motion to dismiss in part
as to Wheeler’s sentence.
This court requires that counsel inform Wheeler, in
writing,

of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Wheeler 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 Wheeler.

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

3