US v. Stacey Thompson, No. 10-4301 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4301 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STACEY THOMPSON, a/k/a Stacy Thompson, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:09-cr-00125-IMK-1) Submitted: August 26, 2010 Decided: September 1, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed in part; affirmed in part by unpublished per curiam opinion. Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Shawn Angus Morgan, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stacey Thompson appeals his conviction and sentence, following his guilty plea to one count of being a felon in possession of a firearm while on pretrial release, in violation of 18 U.S.C. ยงยง 922(g)(1), 924(a)(2), 3147 (2006). Thompson s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that in his opinion, Thompson s appeal presents no meritorious consider whether issues, Thompson s plea but asking this was knowing and court to voluntary. Thompson was advised of his right to file a pro se supplemental brief, but has not filed a brief. dismiss the appeal on the basis The Government has moved to of the waiver of appellate rights contained in Thompson s plea agreement. We review the validity of an appellate waiver de novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a waiver of appellate rights if the waiver is valid and the issue being appealed is covered by the waiver. 2005). United States v. Blick, 408 F.3d 162, 168 (4th Cir. A waiver is valid if the defendant s agreement to the waiver was knowing and voluntary. United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). To voluntary, determine we examine whether the a waiver totality of is the knowing and circumstances, including the experience and conduct of the accused, as well as 2 the accused s educational background and familiarity with the terms of the plea agreement. F.3d 389, omitted). 400 (4th Cir. United States v. General, 278 2002) (internal quotation marks Generally, if the district court fully questions a defendant regarding the waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy, the waiver is valid. 936 F.2d at 167-68. Wessells, Our review of the record discloses that Thompson s appellate waiver was knowing and voluntary and should be enforced to preclude our review of any potential sentencing errors pursuant to Anders. The waiver, however, does not preclude our review of Thompson s conviction. Because Thompson did not move in the district court to withdraw his guilty plea, any error in the Fed. R. Crim. P. 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the record convinces us that the district court fully complied with the requirements of Rule 11 in accepting Thompson s guilty plea, and ensured that Thompson s plea was knowing supported by a sufficient factual basis. and voluntary and See United States v. DeFusco, 949 F.2d 114, 116-20 (4th Cir. 1991). Accordingly, we deny the Government s dismiss in part and affirm Thompson s conviction. motion to We grant the motion to dismiss with regard to any potential sentencing error that may be revealed by our review pursuant to Anders. 3 In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues. We therefore affirm Thompson s conviction. This court requires that counsel inform of Thompson, Supreme Court in of writing, the United the States right for to petition further the review. If Thompson 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 Thompson. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED IN PART; AFFIRMED IN PART 4
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