US v. Andre Roger

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999686633-2] Originating case number: 5:14-cr-00153-BR-1. Copies to all parties and the district court/agency. [999755247]. [15-4372]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4372

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE ROGERS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:14-cr-00153-BR-1)

Submitted:

January 28, 2106

Decided:

February 16, 2016

Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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

Rogers

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),

924(a)

(2012).

The

district court imposed a below Guidelines sentence of 90 months’
imprisonment.

On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), concluding that there
are

no

meritorious

issues

that

are

reviewable

in

light

of

Rogers’ appellate waiver, but arguing that the district court
clearly erred in its calculation of Rogers’ Guidelines range at
sentencing.

The Government has filed a motion to dismiss the

appeal on the ground that Rogers knowingly and intelligently
waived the right to appeal his conviction and sentence.
counsel opposes the Government’s motion as premature.

Rogers’
We grant

the Government’s motion to dismiss in part and dismiss Rogers’
appeal of his sentence, and we deny the motion in part and
affirm Rogers’ conviction.
We review de novo a defendant’s waiver of appellate rights.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

A

defendant may waive the right to appeal as part of a valid plea
agreement.

United States v. Manigan, 592 F.3d 621, 627 (4th

Cir. 2010).

In assessing whether an appellate waiver bars a

defendant’s appeal, we analyze both the validity and the scope
of the waiver.

United States v. Blick, 408 F.3d 162, 171 n.10
2

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(4th

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Cir.

2005).

intelligently
totality

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of

To

waived
the

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determine
his

whether

appellate

circumstances,

Rogers

rights,

including

the

and

look

“to

the

experience

we

knowingly

and

conduct of the accused, as well as the accused’s educational
background

and

agreement.”

familiarity

with

the

terms

of

the

plea

United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (internal quotation marks omitted).

“Generally, if a

district court questions a defendant regarding the waiver of
appellate rights during the [Fed. R. Crim. P.] 11 colloquy and
the

record

indicates

that

the

defendant

understood

significance of the waiver, the waiver is valid.”

the

full

Copeland, 707

F.3d at 528 (internal quotation marks omitted).
We

will

enforce

a

valid

waiver

so

long

appealed is within the scope of the waiver.”
at 528.

as

“the

issue

Copeland, 707 F.3d

We conclude that Rogers’ 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

Rogers’

appeal of his sentence.
The appellate waiver does not, however, preclude our review
of a challenge to the voluntariness of Rogers’ 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 any errors or omissions in the plea colloquy did not affect
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Rogers’ substantial rights.

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See United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002) (stating standard of review); see
also

Henderson

v.

United

States,

(detailing plain error standard).

133

S.

Ct.

1121

(2013)

We therefore deny in part the

Government’s motion to dismiss and affirm Rogers’ conviction.
In
record

accordance
and

have

with
found

grounds for appeal.

Anders,
no

we

have

unwaived

reviewed

potentially

the

entire

meritorious

This court requires that counsel inform

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

a

petition

be

filed,

but

counsel

If Rogers requests

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

served

on

the

facts

state

dispense

that

with

contentions

are

a

oral

copy

thereof

argument

adequately

was

because

presented

in

the

Rogers.

We

and

legal

materials

before

this court and argument would not aid the decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

4