US v. Kevin Mose

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00047-GMG-DJJ-1 Copies to all parties and the district court/agency. [999207632].. [13-4156]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4156

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN EDWARD MOSES, a/k/a Fats,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.
Gina M. Groh,
District Judge. (3:11-cr-00047-GMG-DJJ-1)

Submitted:

September 23, 2013

Decided:

October 3, 2013

Before NIEMEYER, KING, and THACKER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
for Appellant.
William J. Ihlenfeld, II, United States
Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin Moses pled guilty, pursuant to a written plea
agreement,

to

aiding

and

abetting

the

distribution

of

crack

cocaine within 1000 feet of a protected location (an elementary
school) and was sentenced to a within-Guidelines sentence of 262
months’ imprisonment.

Counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), questioning whether
Moses’ plea was knowingly and voluntarily entered and whether
his sentence is reasonable.

Moses filed a pro se supplemental

brief raising additional sentencing issues.

In addition, the

Government has filed a motion to dismiss the appeal based on the
waiver in the plea agreement.

For the reasons that follow, we

affirm the conviction and dismiss Moses’ appeal of his sentence.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006).
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).

United
A waiver

will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver.
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

United States

The question of

whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. Id.

“The

validity of an appeal waiver depends on whether the defendant
knowingly
appeal.”

and

intelligently

agreed

to

Id. at 169 (citation omitted).
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waive

the

right

to

To determine whether a

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waiver is knowing and intelligent, we examine “the totality of
the circumstances, including the experience and conduct of the
accused, as well as the accused’s educational background and
familiarity

with

the

terms

of

the

plea

agreement.”

United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation

marks

and

citation

omitted).

Generally,

if

the

district court fully questions a defendant regarding the waiver
of his right to appeal during the Rule 11 colloquy, the waiver
is both valid and enforceable.

United States v. Johnson, 410

F.3d 137, 151 (4th Cir. 2005); United States v. Wessells, 936
F.2d 165, 167-68 (4th Cir. 1991).
the Fed. R. Crim. P. 11

In addition, the purpose of

colloquy is to ensure that the plea of

guilty is entered into knowingly and voluntarily.
States v. Vonn, 535 U.S. 55, 58 (2002).

See United

Accordingly, prior to

accepting a guilty plea, a trial court, through colloquy with
the defendant, must inform the defendant of, and determine that
he understands, the nature of the charges to which the plea is
offered,

any

mandatory

minimum

penalty,

the

maximum

possible

penalty he faces, and the various rights he is relinquishing by
pleading guilty.

Fed. R. Crim. P. 11(b).

The court also must

determine whether there is a factual basis for the plea.
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).

3

Id.;

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We have thoroughly reviewed the record and conclude
that the district court fully complied with the requirements of
Rule 11.

We further conclude that Moses’ guilty plea and waiver

of his appellate rights was knowing, intelligent, and voluntary.
The

appellate

sentence

included

imposed,

except

range.

Here,

Guidelines
within

waiver

the

advisory

Moses’

a

right

sentence

the

district

Guidelines

range

to

above
court

and,

appeal

the

any

advisory

sentenced

therefore,

Moses

he

has

waived appellate review of his sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal.

Accordingly, we affirm the conviction, grant the

Government’s

motion

to

appeal of his sentence.

dismiss

in

part,

and

dismiss

Moses’

This court requires that counsel inform

Moses, in writing, of the right to petition the Supreme Court of
the United States for further review.

If Moses 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 Moses.

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We dispense with

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oral

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argument

adequately

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because

presented

in

the
the

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facts

and

materials

legal
before

contentions
this

court

are
and

argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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