US v. David Elli

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999418981-2] Originating case number: 5:12-cr-00208-D-1 Copies to all parties and the district court/agency. [999460990].. [14-4185]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4185

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ELLIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:12-cr-00208-D-1)

Submitted:

October 21, 2014

Decided:

October 23, 2014

Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
David Ellis pleaded guilty, pursuant to a written plea
agreement, to possession of a stolen firearm, in violation of 18
U.S.C. § 922(j) (2012), and possession of a sawed-off shotgun,
in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (2012), and
was sentenced to an aggregate term of 235 months’ imprisonment.
On appeal, Ellis’ attorney has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), averring that there are no
meritorious

grounds

for

appeal,

but

questioning

the

district

court’s determination of Ellis’ base offense level under the
Sentencing Guidelines.

Ellis was advised of his right to file a

pro se supplemental brief but did not do so.

The Government has

moved to dismiss the appeal of Ellis’ sentence based on the
appellate
reasons

waiver
that

provision

follow,

we

in

his

grant

plea

the

agreement.

Government’s

For

the

motion

and

dismiss this appeal as to Ellis’ sentence, and we affirm his
convictions.
We review de novo the validity of an appeal waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013).

“We generally will enforce a

waiver . . . if the record establishes that the waiver is valid
and that the issue being appealed is within the scope of the
waiver.”

United States v. Thornsbury, 670 F.3d 532, 537 (4th

Cir. 2012) (internal quotation marks and alteration omitted).
2

A

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defendant’s waiver is valid if he agreed to it “knowingly and
intelligently.”

United States v. Manigan, 592 F.3d 621, 627

(4th Cir. 2010).

Our review of the record confirms that Ellis

knowingly

and

sentence,

reserving

excess

of

voluntarily

the

only

waived
the

Guidelines

the

right

range

to

right

to

appeal

a

sentence

appeal

established

at

his
in

sentencing.

Because the district court imposed a within-Guidelines sentence,
we

grant

the

Government’s

motion

to

dismiss

and

dismiss

the

appeal of Ellis’ sentence.
As the Government recognizes, the appeal waiver does
not preclude appellate review of Ellis’ convictions.

Counsel

does not challenge the convictions on appeal, and our review of
the

record,

potentially

conducted
meritorious

Ellis’ convictions.

pursuant
claims

to

relevant

Anders,
to

the

revealed
validity

no
of

We therefore affirm the judgment in part

and dismiss in part.
This
writing,

of

court

his

requires

right

to

that

petition

United State for further review.

counsel
the

inform

Supreme

Ellis,

Court

of

in
the

If Ellis requests that such a

petition be filed, but counsel believes that the 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 of the motion was served on Ellis.

We dispense with oral

argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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