US v. Clayton Atkinson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part. [998939860-2] Originating case number: 5:08-cr-00070-BO-1. Copies to all parties and the district court/agency. [998988780]. [12-4217]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4217

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAYTON ATKINSON, a/k/a Howard Clark,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:08-cr-00070-BO-1)

Submitted:

October 30, 2012

Decided:

November 27, 2012

Before MOTZ, FLOYD, and THACKER, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
& Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Clayton

Atkinson

appeals

his

convictions

for

conspiracy to commit mail and wire fraud and to transport stolen
funds

and

goods

in

interstate

commerce,

in

violation

of

18

U.S.C. § 371 (2006), and mail fraud, in violation of 18 U.S.C.
§§ 2,

1341

(2006),

and

his

150-month

sentence.

Atkinson’s

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

procedurally reasonable.

whether

Atkinson’s

sentence

is

The Government has moved to dismiss

the appeal of the sentence as barred by Atkinson’s waiver of the
right to appeal included in the written plea agreement.

We

affirm in part and dismiss in part.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Atkinson
knowingly

and

voluntarily

waived

his

right

to

appeal

his

sentence and that the sentencing issue he seeks to raise on
appeal

falls

squarely

appellate rights.
to

dismiss

in

within

the

scope

of

his

waiver

of

Accordingly, we grant the Government’s motion

part

and

dismiss

the

challenge

to

Atkinson’s

sentence.
Because Atkinson did not waive his right to appeal his
convictions, we deny in part the Government’s motion to dismiss.
We have reviewed the record and conclude that Atkinson knowingly
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and voluntarily entered valid guilty pleas and that the pleas
were

supported

by

a

sufficient

factual

basis.

See

United

States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
In accordance with Anders, we have reviewed the entire record
for

non-waivable

Accordingly,

we

meritorious
affirm

the

issues

district

and

have

court’s

found

judgment

none.
as

to

Atkinson’s convictions.
This court requires that counsel inform Atkinson, in
writing,

of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Atkinson 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 Atkinson.

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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