US v. Cornelius I. Haye

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999119969-2] Originating case number: 3:12-cr-00046-HEH-1 Copies to all parties and the district court/agency. [999172341].. [13-4064]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4064

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CORNELIUS I. HAYES,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:12-cr-00046-HEH-1)

Submitted:

August 9, 2013

Decided:

August 14, 2013

Before MOTZ, SHEDD, and DIAZ, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Robert J. Wagner, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Peter Sinclair Duffey,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Cornelius Ivan Hayes pled guilty, pursuant to a plea
agreement, to use of a firearm in a crime of violence causing
the

death

of

another

person,

§§ 924(c), 924(j) (2006).

in

violation

of

18

U.S.C.

On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal but questioning
whether
appeal

Hayes
and

knowingly

whether

and

the

voluntarily

district

court

waived
erred

his
in

right

applying

to
a

sentencing enhancement for reckless endangerment during flight.
Hayes was informed of his right to file a pro se brief but has
not done so.
appeal

on

The Government has filed a motion to dismiss this

the

ground

that

Hayes

knowingly

and

intelligently

waived the right to appeal his sentence and conviction.

For the

reasons that follow, we dismiss in part and affirm in part.
In

his

plea

agreement,

Hayes

waived

the

right

to

appeal his sentence and conviction, reserving only the right to
appeal those issues that may not be waived by law.

“A defendant

may waive the right to appeal . . . so long as the waiver is
knowing and voluntary.”

United States v. Copeland, 707 F.3d

522, 528 (4th Cir. 2013), petition for cert. filed, ___ U.S.L.W.
___ (U.S. May 28, 2013) (No. 12-10514) (internal quotation marks
omitted).

Generally, if the district court fully questions a

defendant regarding the waiver of his right to appeal during the
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Fed. R. Crim. P. 11 colloquy and the record reveals that the
defendant understood the full import of the waiver, the waiver
is both valid and enforceable.

Id.

A review of the record

reveals that the court determined Hayes was competent to plead
guilty, had the opportunity to discuss his plea agreement with
counsel, entered his guilty plea in the absence of threats or
force, and understood the terms of his appeal waiver.
conclude

that

Hayes

validly

waived

his

right

to

Thus, we

appeal

his

sentence and conviction and that the sentencing claim raised on
appeal falls within the scope of his waiver.

Id. (providing

standard).
Accordingly,

we

grant

the

Government’s

motion

to

dismiss in part and dismiss the appeal of Hayes’s sentence and
conviction

as

to

any

issue

for

which

waiver

is

legally

permissible, including the raised issue of reckless endangerment
as a sentence enhancement.

Although the waiver provision in the

plea agreement precludes our review of most issues related to
Hayes’s sentence and conviction, the waiver does not preclude
our review of any errors that may not be waived and that may be
revealed by our review pursuant to Anders.

See United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (naming issues not
waived by appellate waiver).

In accordance with Anders, we have

reviewed the record in this case and have found no unwaived
meritorious issues for appeal.

We therefore deny in part the
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Government’s motion to dismiss and affirm Hayes’s sentence and
conviction on any grounds not encompassed by his knowing and
intelligent appellate waiver.
This
writing,

of

court

his

requires

right

to

that

petition

United States for further review.

counsel
the

inform

Supreme

Hayes,

Court

of

in
the

If Hayes 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 Hayes.

We dispense with

oral

legal

contentions

are

before

this

and

argument

adequately

because

presented

in

the
the

facts

and

materials

court

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

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