US v. Cedric McKenith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999598264-2] Originating case number: 7:14-cr-00026-D-1 Copies to all parties and the district court/agency. [999674463].. [15-4105]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4105

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CEDRIC ANTOINE MCKENITH, a/k/a Antoine Cedric McKenith,
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. (7:14-cr-00026-D-1)

Submitted:

September 30, 2015

Decided:

October 8, 2015

Before DUNCAN, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
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Unpublished opinions are not binding precedent in this circuit.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:
Cedric

Antoine

McKenith

appeals

the

180-month

sentence

imposed by the district court after he pled guilty to selling a
firearm and ammunition to a felon, in violation of 18 U.S.C.
§ 922(d)(1) (2012), and possessing a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2012).

McKenith’s counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that he has found no
meritorious grounds for appeal but raising as a potential issue
the substantive reasonableness of McKenith’s sentence.

McKenith

has filed a pro se supplemental brief arguing that the district
court erred in determining his relevant conduct at sentencing
and in applying the Sentencing Guidelines.
The

Government

has

moved

to

dismiss

pursuant

appellate waiver in McKenith’s plea agreement.

to

the

McKenith argues

that the waiver is invalid and does not apply to the claims
asserted in his pro se brief.

We grant the Government’s motion

to dismiss and dismiss the appeal.
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2012).

United States

v. Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135
S. Ct. 1579 (2015).

A waiver will preclude an appeal of “a

specific issue if . . . the waiver is valid and the issue being
appealed is within the scope of the waiver.”
2

Id.

Whether a

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defendant validly waived his right to appeal is a question of
law that we review de novo.

United States v. Copeland, 707 F.3d

522, 528 (4th Cir. 2013).
Our

review

of

the

record

leaves

us

with

no

doubt

that

McKenith knowingly and voluntarily entered his guilty plea and
waived his appellate rights.
waiver

is

district

invalid

court

because

would

find

Although McKenith argues that his
he

was

unaware

at

sentencing,

of

the

the

facts

district

the

court

fully explained the sentencing procedures and was not required
to make these determinations prior to accepting McKenith’s plea.
See United States v. Thornsbury, 670 F.3d 532, 538 (4th Cir.
2012) (holding that defendant, through his waiver, “assumed the
risk

of

Moreover,
brief

and

unforeseen
the

legal

sentencing

McKenith’s

pro

errors

claims
se

involving

asserted

brief

fall

in

his

sentence”).

counsel’s

within

the

Anders

scope

of

McKenith’s valid waiver. *

*

McKenith notes that his waiver reserved his right to
appeal from an above-Guidelines sentence and argues that his
sentence, which was within the Guidelines range calculated by
the district court, exceeded the Guidelines range that would
have resulted had his sentencing challenges been sustained.
However, McKenith’s appellate waiver only reserved “the right to
appeal from a sentence in excess of the applicable advisory
Guideline range that is established at sentencing” (Plea
Agreement (PACER No. 69) at 1-2), not the right to appeal from a
sentence in excess of the Guidelines range that McKenith
believes is applicable.
Moreover, the waiver expressly stated
that it encompassed “any issues that relate to the establishment
of the advisory Guideline range.” (Id. at 1).

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Pursuant to Anders, we have reviewed the entire record for
any unwaived meritorious grounds for appeal and have found none.
Accordingly, we grant the Government’s motion to dismiss and
dismiss the appeal.

This court requires that counsel inform

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

a

petition

be

filed,

but

counsel

If McKenith requests
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 McKenith.

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

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