US v. Andrew Hood

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998927548-2] Originating case number: 7:11-cr-00112-H-1 Copies to all parties and the district court/agency. [998976752].. [12-4316]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4316

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW FRANKLIN HOOD,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Malcolm J. Howard,
Senior District Judge. (7:11-cr-00112-H-1)

Submitted:

October 19, 2012

Decided:

November 7, 2012

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a written plea agreement, Andrew Franklin
Hood

pled

guilty

pornography,
Supp.

2012),

in

to

a

single

violation

and

was

of

18

sentenced

count

of

U.S.C.A.
to

121

receipt

of

child

§ 2252(a)(2)

(West

months’

imprisonment.

Counsel for Hood has now submitted a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that he has
divined

no

meritorious

grounds

for

appeal

but

questioning

whether the district court improperly viewed the Guidelines as
mandatory, rendering Hood’s sentence procedurally unreasonable.
The

Government

has

moved

to

dismiss

the

appeal

sentence based on his waiver of appellate rights.

of

Hood’s

Hood was

informed of his right to file a pro se supplemental brief, but
has not done so.
Government’s

We have reviewed the record, and we grant the

motion,

dismissing

Hood’s

appeal

in

part

and

affirming in part.
A criminal defendant may, in a valid plea agreement,
waive the right to appeal under 18 U.S.C. § 3742 (2006).
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).

United

We review

the validity of an appellate waiver de novo and will enforce the
waiver if it is valid and the issue appealed is within the scope
of that waiver.
Cir. 2005).

United States v. Blick, 408 F.3d 162, 168 (4th

Generally, if the district court fully questions a

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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.

Manigan, 592 F.3d at

627;

137,

United

2005).

States

Our

v.

review

Johnson,

of

the

voluntarily

410

F.3d

record

waived

151

the

right

Cir.

us

convinces

(4th
that

Hood

appeal

his

knowingly

and

to

sentence.

We therefore grant the Government’s motion to dismiss

as to all sentencing issues that a defendant may lawfully waive.
As to any remaining issues, see Blick, 408 F.3d at
171-73; United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007), we have reviewed the entire record in accordance with
Anders

and

have

found

no

unwaived

meritorious

issues.

We

therefore affirm the district court’s judgment as to all issues
not encompassed by Hood’s valid waiver of appellate rights.
This
writing,
United

of

court

the

States

requires

right

for

to

further

that

counsel

petition

the

review.

If

inform

Supreme
Hood

Hood,

Court

requests

of

in
the

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 Hood.
We dispense with oral argument because the facts and
legal

contentions

are

adequately

3

presented

in

the

materials

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before

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the

and

court

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argument

would

not

aid

the

decisional

process.
DISMISSED IN PART;
AFFIRMED IN PART

4