US v. Kevin Deese

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying in part the Motion to dismiss appeal [999476786-2]. Originating case number: 7:13-cr-00042-D-1. Copies to all parties and the district court/agency. [999511091].. [14-4583]

Appeal: 14-4583

Doc: 29

Filed: 01/15/2015

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4583

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN RAY DEESE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:13-cr-00042-D-1)

Submitted:

January 13, 2015

Decided:

January 15, 2015

Before WILKINSON, AGEE, and WYNN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant.
James Bradsher, OFFICE OF THE UNITED
STATES ATTORNEY, Jennifer P. May-Parker, Brian Scott Meyers,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4583

Doc: 29

Filed: 01/15/2015

Pg: 2 of 4

PER CURIAM:
Kevin Ray Deese seeks to appeal the criminal judgment
and

252-month

sentence

imposed

after

he

pleaded

guilty

to

conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine and 280 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)
(2012);

possession

of

a

firearm

in

furtherance

of

a

drug

trafficking crime and aiding and abetting, in violation of 18
U.S.C.

§§ 2,

924(c)

(2012);

and

conspiracy

to

commit

money

laundering, in violation of 18 U.S.C. § 1956(a)(1), (h) (2012).
On appeal, Deese’s counsel 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

the

district court plainly erred in conducting Reese’s plea colloquy
or erred in applying a four-level leadership enhancement when
calculating Deese’s sentencing Guidelines range.
supplemental
The

pro

Government

based

on

an

se

has

brief,
filed

appellate

agreement with Deese.
premature.

a

also

challenging

motion

waiver

to

the

dismiss

provision

in

Deese filed a
enhancement.

Deese’s

its

appeal

written

plea

Deese opposes the Government’s motion as

We grant the Government’s motion to dismiss in part

and dismiss Deese’s appeal of his sentence, and we deny the
motion in part and affirm Deese’s convictions.

2

Appeal: 14-4583

Doc: 29

Filed: 01/15/2015

Pg: 3 of 4

We review de novo a defendant’s waiver of appellate
rights.

United

States

v.

Copeland,

707

F.3d

Cir.), cert. denied, 134 S. Ct. 126 (2013).

522,

528

(4th

“A defendant may

waive the right to appeal his conviction and sentence so long as
the waiver is knowing and voluntary.”
marks omitted).

Id. (internal quotation

Our review of the record leads us to conclude

that, under the totality of the circumstances, Deese’s waiver of
appellate rights was knowing and voluntary and that the waiver
provision is therefore valid and enforceable.
States

v.

Thornsbury,

670

F.3d

532,

See id.; United

537

(4th

Cir.

2012)

(providing standard).
We will enforce a valid waiver so long as “the issue
appealed is within the scope of the waiver.”
at 528.

Copeland, 707 F.3d

We conclude that Deese’s challenge to the calculation

of his Guidelines range falls within the scope of the appellate
waiver provision in the plea agreement.
Government’s

motion

to

dismiss

in

Therefore, we grant the

part

and

dismiss

Deese’s

appeal of his sentence.
The appellate waiver does not, however, preclude our
review of a challenge to the voluntariness of Deese’s plea.

See

United States v. Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir.
1994).

We have reviewed the plea colloquy for plain error and

conclude that that the district court fully complied with Fed.
R. Crim. P. 11 and properly ensured that Deese’s guilty plea was
3

Appeal: 14-4583

Doc: 29

Filed: 01/15/2015

knowing

and

and

basis.

We therefore deny in part the Government’s motion to

voluntary

Pg: 4 of 4

supported

by

a

sufficient

factual

dismiss and affirm Deese’s convictions.
In accordance with Anders, we have reviewed the entire
record and

the

issues

raised

in

Deese’s

pro

se

supplemental

brief and have found no unwaived potentially meritorious grounds
for appeal.

We therefore affirm Deese’s convictions and dismiss

the appeal of the sentence.

This court requires that counsel

inform Deese, in writing, of his right to petition the Supreme
Court

of

the

United

States

for

further

review.

If

Deese

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court

for

leave

to

withdraw

from

representation.

Counsel’s

motion must state that a copy thereof was served on Deese.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

4