US v. Yoaliang Gao


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999666563-2] Originating case number: 1:14-cr-00218-JCC-1 Copies to all parties and the district court/agency. [999702273].. [15-4282]

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Appeal: 15-4282 Doc: 31 Filed: 11/19/2015 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4282 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. YOALIANG GAO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:14-cr-00218-JCC-1) Submitted: November 17, 2015 Decided: November 19, 2015 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Mark Bodner, Fairfax, Virginia, for Appellant. Jennifer Gimbert Ballantyne, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4282 Doc: 31 Filed: 11/19/2015 Pg: 2 of 3 PER CURIAM: Yoaliang Gao appeals his conviction for possession of 15 or more counterfeit or unauthorized access devices and his 30-month sentence. Gao’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal and acknowledging Gao’s waiver of appellate rights but questioning the application of Sentencing Guidelines enhancements position of trust. for loss amount and for abusing a Gao did not file a pro se supplemental brief despite notice of his right to do so. The Government has moved to dismiss the appeal as barred by the appellate waiver included in Gao’s plea agreement. 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.” waiver is valid intelligently.” (4th Cir. 2010). if he agreed to it Id. A defendant’s “knowingly and United States v. Manigan, 592 F.3d 621, 627 Whether a defendant validly waived his right to appeal is a question of law that we review de novo. States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). 2 United Appeal: 15-4282 Doc: 31 Filed: 11/19/2015 Pg: 3 of 3 Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Gao knowingly and voluntarily waived his right to appeal his conviction and any sentence within the statutory maximum. The sentencing claims raised on appeal clearly fall within the scope of this broad waiver. Therefore, we grant the motion to dismiss and dismiss Gao’s appeal. with Anders We have reviewed the entire record in accordance and have found no meritorious issues for appeal outside the scope of the waiver. This court requires that counsel inform Gao, in writing, of the right to petition the Supreme Court of the United States for further review. If Gao requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before court for leave to withdraw from Counsel’s motion must state that a copy thereof was served on Gao. facts this We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. DISMISSED 3

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