US v. Ulysses Hensen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part, affirm in part [998863010-2] Originating case number: 5:10-cr-00388-D-1 Copies to all parties and the district court/agency. [998926137].. [11-5212]

Appeal: 11-5212

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5212

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ULYSSES SAMUEL HENSEN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:10-cr-00388-D-1)

Submitted:

August 21, 2012

Decided:

August 28, 2012

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Bradley L. Henry, BREEDING & DOTHARD, LLC, Knoxville, Tennessee,
for Appellant.
Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ulysses Samuel Hensen appeals from his conviction and
120-month sentence following his guilty plea, pursuant to a plea
agreement, to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006).
Hensen’s counsel filed a brief pursuant to Anders v. California,
386

U.S.

738

(1967),

stating

that

there

were

no

meritorious

issues for appeal, but questioning whether the guilty plea 1 is
valid, whether Hensen knowingly and voluntarily waived his right
to appeal, and whether the district court erred in sentencing
Hensen.

Hensen filed a pro se document challenging the validity

of his plea and the calculation of the Guidelines range. 2

The

Government has moved to dismiss Hensen’s appeal of his sentence,
asserting the appeal is precluded by the waiver of appellate
rights in Hensen’s plea agreement.

We grant the Government’s

motion, dismiss the appeal in part, and affirm in part.
A

defendant

may

waive

the

waiver is knowing and intelligent.

right

to

appeal

if

that

United States v. Manigan,

1

Although counsel captioned this argument a challenge to
the plea agreement, it is clear from the substance of the claim
that he challenges the validity of the guilty plea itself.
2

Hensen was granted two extensions of time, until August 13
2012, to file a pro se supplemental brief more effectively
addressing these issues.
That date has passed and Hensen has
filed nothing more.
We have considered the pro se issues,
however, and conclude they are either waived or without merit.

2

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592 F.3d 621, 627 (4th Cir. 2010).

Generally, 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
both 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).

The

question

of

whether

a

defendant validly waived his appeal rights is a question of law
that this court reviews de novo.

Manigan, 592 F.3d at 626.

Our review of the record leads us to conclude that
Hensen knowingly and voluntarily waived the right to appeal his
sentence.

We therefore grant the Government’s motion to dismiss

the appeal of Hensen’s sentence and dismiss this portion of the
appeal.
We next consider Hensen’s challenge to the validity of
his guilty plea, an issue not foreclosed by Hensen’s appellate
waiver.

Because Hensen did not move in the district court to

withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error.

United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).

To satisfy the plain error standard,

an appellant must show:

“(1) an error was made; (2) the error

is plain; and (3) the error affects substantial rights.”

United

States

2009).

v.

Massenburg,

564

F.3d

337,

342-43

(4th

Cir.

Even if Hensen satisfies these requirements, correction of the
error lies within our discretion, if we decide that the error
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“seriously affects the fairness, integrity or public reputation
of judicial proceedings.”

Id. at 343 (internal quotation marks

omitted).
Our review of the record reveals that the district
court

fully

complied

with

the

requirements

accepting Hensen’s guilty plea.

of

Rule

11

in

The district court properly

informed Hensen of the rights he was forfeiting as a result of
his plea and the nature of the charges and penalties he faced,
and

found

that

voluntarily.

Hensen

was

competent

and

entered

his

plea

The record establishes that Hensen knowingly and

voluntarily

entered

into

his

guilty

plea

with

a

full

understanding of its consequences, and that the district court
ensured the existence of a sufficient factual basis.

Therefore,

there was no error in the district court’s acceptance of the
plea.
As required by Anders, we have reviewed the entire
record and have found no issues that are meritorious and outside
the

scope

of

conviction.

the

waiver.

We

therefore

affirm

We deny counsel’s motion to withdraw.

Hensen’s

This court

requires that counsel inform Hensen, in writing, of his right to
petition

the

Supreme

review.

If

Hensen

Court

of

requests

the
that

United
a

States

petition

be

for

further

filed,

but

counsel believes that such a petition would be frivolous, then
counsel

may

renew

his

motion
4

for

leave

to

withdraw

from

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representation.

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Counsel’s motion must state that a copy thereof

was served on Hensen.

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.
DISMISSED IN PART;
AFFIRMED IN PART

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