US v. Shane James Shirley

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--Motion to dismiss appeal [999884608-2] Originating case number: 5:15-cr-00245-D-1 Copies to all parties and the district court/agency. [999939780].. [16-4130]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4130

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANE JAMES SHIRLEY,
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. (5:15-cr-00245-D-1)

Submitted:

September 29, 2016

Decided:

October 3, 2016

Before SHEDD, KEENAN, and HARRIS, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, 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Unpublished opinions are not binding precedent in this circuit.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:
Shane

James

Shirley

pled

guilty

in

accordance

with

a

written plea agreement to possession of a firearm while subject
to a protective order, in violation of 18 U.S.C. §§ 922(g)(8),
924(a)(2)

(2012).

Shirley

was

sentenced

to

108

months

of

imprisonment, the bottom of his correctly calculated advisory
Sentencing Guidelines range.

He now appeals.

His attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967),

claiming

that

the

district

court

erred

by

using

the

cross-reference for kidnapping to enhance his sentence and that
his sentence was thus substantively unreasonable.

Shirley was

advised of his right to file a pro se supplemental brief but did
not file such a brief.

The United States moves to dismiss the

appeal based on a waiver-of-appellate-rights provision in the
plea agreement.

We affirm in part and dismiss in part.

The appeal waiver did not apply to Shirley’s conviction.
Having reviewed the entire record, we hold that: the district
court substantially complied with Fed. R. Crim. P. 11; there was
a factual basis for the plea; and the plea was knowingly and
voluntarily entered.

Accordingly, we affirm his conviction.

In the plea agreement, Shirley waived his right to appeal
his sentence, with certain exceptions not applicable here.

Upon

review of the record, we conclude, given the totality of the
circumstances, that the waiver is valid and enforceable.
2

We

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further find that the sentencing issue Shirley seeks to raise on
appeal falls within the scope of the waiver.

United States v.

Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).

Accordingly, we

grant the motion to dismiss Shirley’s appeal of his sentence.
Pursuant to Anders, we have reviewed the entire record for
meritorious,
therefore

nonwaivable

affirm

in

part

issues
and

and

have

dismiss

in

found
part.

none.
This

We
court

requires that counsel inform Shirley, in writing, of his right
to petition the Supreme Court of the United States for further
review.

If Shirley requests that such a petition be filed, but

counsel

believes

counsel

may

that

move

representation.

in

the
this

petition
court

would

for

be

leave

frivolous,

to

withdraw

then
from

Counsel’s motion must state that a copy of the

motion was served on Shirley.

We dispense with oral argument

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

AFFIRMED IN PART;
DISMISSED IN PART

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