United States v. Andre Rogers

UNPUBLISHED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Dismissed in part and affirmed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 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. Rogers’

counsel opposes the Government’s motion as premature. 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 (4th Cir. 2005). To determine whether Rogers knowingly and

intelligently waived his appellate rights, we look “to the

totality of the circumstances, including the experience and

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

background and familiarity with the terms of the plea

agreement.” 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 the full

significance of the waiver, the waiver is valid.” Copeland, 707

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

We will enforce a valid waiver so long as “the issue

appealed is within the scope of the waiver.” Copeland, 707 F.3d

at 528. 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. Therefore, we grant the

Government’s motion to dismiss in 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

3 Rogers’ substantial rights. See United States v. Martinez, 277

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

also Henderson v. United States, 133 S. Ct. 1121 (2013)

(detailing plain error standard). We therefore deny in part the

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

In accordance with Anders, we have reviewed the entire

record and have found no unwaived potentially meritorious

grounds for appeal. This court requires that counsel inform

Rogers, in writing, of the right to petition the Supreme Court

of the United States for further review. If Rogers 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 Rogers. 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 IN PART; AFFIRMED IN PART

4