US v. Frank Jackson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [999389894-2] Originating case number: 5:07-cr-00019-FL-1 Copies to all parties and the district court/agency. [999444768].. [14-4143]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4143

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK M. JACKSON, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:07-cr-00019-FL-1)

Submitted:

September 25, 2014

Decided:

September 29, 2014

Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Frank

M.

Jackson,

Jr.,

pled

guilty

pursuant

to

a

written plea agreement to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
sentenced

within

imprisonment. *

the

Guidelines

range

to

fifty-seven

He was
months’

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

substantive reasonableness of Jackson’s sentence.

the

Jackson was

informed of his right to file a pro se brief but has not done
so.

The Government has filed a motion to dismiss this appeal on

the ground that Jackson knowingly and intelligently waived the
right to appeal his sentence.

For the reasons that follow, we

dismiss in part and affirm in part.
As pertinent to this appeal, in his plea agreement,
Jackson waived the right to appeal his sentence reserving only
the right to appeal from a sentence in excess of the applicable
advisory

Guidelines

range

defendant

may

the

waive

established

right

*

to

at

appeal

if

sentencing.
that

waiver

A
is

Jackson
was
initially
sentenced
to
151
months’
imprisonment.
Jackson subsequently filed a 28 U.S.C. § 2255
(2012) motion seeking relief under United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc). The district court granted
the motion and imposed the fifty-seven-month sentence at
resentencing.

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knowing and intelligent and the issues raised on appeal fall
within the waiver’s scope.

United States v. Davis, 689 F.3d

349, 354-55 (4th Cir. 2012) (per curiam).
appeal

waiver

“ultimately

is

evaluated

totality of the circumstances.”
F.3d

522,

528

(4th

Cir.

The validity of an
by

reference

to

the

United States v. Copeland, 707

2013)

(quotation

marks

omitted).

Generally, if the district court fully 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.
Id.
A review of the record discloses that the district
court determined Jackson was competent to plead guilty, had the
opportunity to discuss his plea agreement with counsel, entered
his

guilty

understood
sentence

plea
the

in

terms

imposed

Guidelines range.

did

the
of

absence
his

not

of

appeal
exceed

threats
waiver.
the

or

force,

and

Moreover,

the

advisory

Sentencing

Thus, we conclude that Jackson validly waived

his right to appeal his sentence and that the claim raised on
appeal falls within the scope of his waiver.
F.3d at 354-55.

See Davis, 689

Accordingly, we grant the Government’s motion

to dismiss in part and dismiss the appeal of Jackson’s sentence.
Although the waiver provision in the plea agreement
precludes our review of Jackson’s sentence, the waiver does not
preclude our review of any errors in Jackson’s conviction that
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may be revealed by our review pursuant to Anders.

In accordance

with Anders, we have reviewed the record in this case and have
found no meritorious grounds for appeal.

Thus, as to Jackson’s

conviction, we deny in part the Government’s motion to dismiss
and affirm the conviction.
This court requires that counsel inform Jackson, in
writing,

of

his

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Jackson 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 Jackson.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

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