US v. Anthony Mincey, No. 09-4850 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4850 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTHONY MINCEY, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:08-cr-00210-RJC-1) Submitted: January 31, 2011 Decided: February 16, 2011 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a written plea agreement, Anthony Mincey pled guilty to two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (2006) (Counts 2 and 4), and bank fraud, in violation of 18 U.S.C. § 1344 (2006) (Count 3). The district court sentenced Mincey to an aggregate term of sixty months of imprisonment, thirty-six months on Count Three to run consecutive to concurrent sentences of twenty-four months on each of Counts Two and Four. This appeal followed. On appeal, Mincey s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but questioning whether the district court abused its discretion by imposing a sentence within an admittedly correct Guidelines range. Mincey did not file a pro se supplemental brief, although informed of his right to do so. This court sought supplemental briefing from the parties on a sentencing issue. In its briefs, the Government now asserts that based on the appeal waiver in Mincey s plea agreement, this court should dismiss the appeal. A defendant may waive waiver is knowing and intelligent. the is totality knowing of the and intelligent, circumstances, 2 to appeal if that United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). waiver right To determine whether a this including court examines the the experience 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 the district court fully questions a defendant regarding the waiver of his right to appeal during the Rule 11 colloquy, the waiver is knowing and voluntary, and thus enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Whether a defendant validly waived his right to appeal is a question of law that we review de novo. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United This court will enforce a valid waiver so long as the issue being appealed is within the scope of the waiver. Id. Mincey s plea agreement contained a broad waiver of his right to challenge his conviction and sentence on appeal, except for claims of prosecutorial assistance of counsel. misconduct or ineffective On appeal, Mincey does not challenge the voluntariness of his waiver, nor does the record support such a challenge. highlighted At the Rule 11 hearing, the Government specifically the appeal waiver in its summary of the plea agreement, and the magistrate judge verified that Mincey was aware of the waiver. grade education, Accordingly, Mincey, then thirty-seven with a twelfth- persisted because Mincey in his knowingly 3 desire and to plead guilty. voluntarily entered into the waiver and the Government invoked its enforcement, we dismiss Mincey s appeal as to the claims raised in the Anders brief and supplemental brief, which are clearly within the waiver s scope. In accordance with the requirements of Anders, we have examined the entire record and have found no unwaived and meritorious issues. Therefore we affirm the district court s judgment This in part. court requires that counsel inform Mincey in writing of his right to petition the Supreme Court of the United States for further review. If Mincey requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Mincey. 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. DISMISSED IN PART; AFFIRMED IN PART 4
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