US v. Corey Arti

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998976914-2] Originating case number: 5:11-cr-00014-H-1 Copies to all parties and the district court/agency. [999001637].. [11-5112]

Appeal: 11-5112

Doc: 44

Filed: 12/13/2012

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5112

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY EARL ARTIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Malcolm J. Howard,
Senior District Judge. (5:11-cr-00014-H-1)

Submitted:

November 30, 2012

Decided:

December 13, 2012

Before GREGORY, SHEDD, and WYNN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, 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Unpublished opinions are not binding precedent in this circuit.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: 11-5112

Doc: 44

Filed: 12/13/2012

Pg: 2 of 5

PER CURIAM:
Corey

Earl

Artis

pled

guilty

pursuant

to

a

plea

agreement to one count of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924 (2006).
and

has

He was sentenced to fifty-two months’ imprisonment,

noted

this

appeal.

Artis’

attorney

filed

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious issues for appeal, but questioning
whether the district court erred in denying Artis’ motion to
dismiss the indictment.

Artis was advised of his right to file

a pro se supplemental brief but has not done so.

Upon our

initial review of the appeal, we directed supplemental briefing
regarding whether either of Artis’ North Carolina convictions
for eluding arrest with a motor vehicle qualifies as a crime of
violence

under

§ 2K2.1(a)(4)(A)
dismiss

the

U.S.
(2011).

appeal,

Sentencing
The

Guidelines

Government

asserting

that

has

Artis’

now
plea

Manual
moved

agreement

contained a waiver of the right to appeal his sentence.
opposes the motion.

to

Artis

We grant the motion in part, affirm in

part, and dismiss in part.
A

defendant

may

waive

the

waiver is knowing and intelligent.
592 F.3d 621, 627 (4th Cir. 2010).

2

right

to

appeal

if

that

United States v. Manigan,
Whether a defendant validly

Appeal: 11-5112

Doc: 44

Filed: 12/13/2012

Pg: 3 of 5

waived his appeal rights is a question of law that we review de
novo.
the

Id. at 626.

totality

of

The validity of a waiver is assessed under

the

circumstances,

id.

at

627,

but

if

the

district court questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy, the
waiver is generally found to be valid and enforceable.

United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. General, 278 F.3d 389, 400-01 (4th Cir. 2002).
Our review of the record leads us to conclude that
Artis knowingly and voluntarily waived the right to appeal a
sentence, like the one imposed here, that is within the scope of
the Guidelines range, and that the supplementally briefed issue
is within the scope of that waiver.

We therefore grant in part

the Government’s motion to dismiss, and dismiss the appeal of
Artis’ sentence.
The waiver does not preclude review of whether the
district court erred in denying Artis’ pro se motion to dismiss
the

indictment

firearm.

charging

him

as

a

felon

in

possession

of

a

In reviewing the denial of a motion to dismiss an

indictment, we review the district court’s factual findings for
clear error and its legal conclusions de novo.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).

3

United States v.

Appeal: 11-5112

Doc: 44

Filed: 12/13/2012

Pg: 4 of 5

In his pro se motion, Artis relied on our decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc)
(holding that consideration of hypothetical aggravating factors
and criminal history is inappropriate when determining whether
prior offense constitutes felony).

A review of Artis’ criminal

history reveals he was convicted of receiving stolen property of
a value greater than $1000 in Delaware, in violation of Del.
Code Ann. tit. 11

§ 851.3, a Class G felony punishable by up to

two years’ imprisonment.

Del. Code Ann. tit. 11 § 4205(b)(7).

In view of this conviction, Artis is not entitled to relief
under Simmons, and we find that the district court did not err
in denying his pro se motion to dismiss the indictment.
The waiver provision also does not preclude our review
of Artis’ conviction pursuant to Anders.

We have reviewed the

entire record and have found no issues that are meritorious and
outside the scope of the waiver.

We therefore deny in part the

Government’s motion to dismiss and affirm Artis’ conviction.
This
writing,

of

court

his

requires

right

to

that

petition

United States for further review.

counsel
the

inform

Supreme

Artis,

Court

of

in
the

If Artis 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.

4

Counsel’s motion must

Appeal: 11-5112

Doc: 44

Filed: 12/13/2012

Pg: 5 of 5

state that a copy thereof was served on Artis.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

the

court

are
and

argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART

5