US v. Ah-Shay Nicholson
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [1000036604-2]. Originating case number: 7:15-cr-00107-BO-1. Copies to all parties and the district court. . [16-4706]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:15-cr-00107-BO-1)
Submitted: May 31, 2017
Decided: June 23, 2017
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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Ah-Shay Nicholson pleaded guilty, pursuant to a written plea agreement, to
damaging or destroying, by means of fire or an explosive, a building owned or possessed
by an organization receiving federal financial assistance, in violation of 18 U.S.C.
§ 844(f)(1) (2012). On appeal, Nicholson’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning the district court’s calculation of the
Sentencing Guidelines range. The Government has moved to dismiss on the basis of the
appeal waiver contained in Nicholson’s plea agreement. For the reasons that follow, we
grant the motion and dismiss the appeal.
We conclude that the appeal waiver contained in Nicholson’s plea agreement is
valid, as he entered it knowingly and intelligently. See United States v. Manigan, 592 F.3d
621, 627 (4th Cir. 2010). An appeal waiver generally is enforceable “if the record
establishes that the waiver is valid and that the issue being appealed is within the scope of
the waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal
quotation marks omitted).
Nicholson waived the right to appeal his conviction and any sentence imposed
within the Guidelines range established at sentencing. The district court calculated the
Guidelines term to be 60 months, the statutory minimum, see 18 U.S.C. § 844(f)(1), and
sentenced Nicholson accordingly.
Nicholson’s challenge to the calculation of the
Guidelines range is therefore precluded by his valid appeal waiver.
In accordance with Anders, we have reviewed the entire record in this case for any
potentially meritorious issues that might fall outside the scope of the waiver and have found
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none. We therefore grant the Government’s motion and dismiss the appeal. This court
requires that counsel inform Nicholson, in writing, of the right to petition the Supreme
Court of the United States for further review. If Nicholson requests that a petition be filed,
but counsel 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 state that a copy
thereof was served on Nicholson.
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
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