US v. Ernest Augustus Hawkin, No. 11-4666 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4666 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERNEST AUGUSTUS HAWKINS, a/k/a Gus Hawkins, 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. (5:10-cr-00322-D-1) Submitted: December 1, 2011 Decided: December 15, 2011 Before MOTZ, SHEDD, and KEENAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Daniel K. Dorsey, Washington, D.C., 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 Unpublished opinions are not binding precedent in this circuit.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: Ernest Augustus Hawkins pled guilty pursuant to a plea agreement to conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. ยง 1951 (2006), and was sentenced to 240 months in prison. Counsel has filed an appeal pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states that he believes there are no legal issues that were not properly raised or disposed of by the district court, and there are no grounds for an appeal in this case[.] Although counsel also states that Hawkins believes the district court violated Fed. R. Crim. P. 11 when it accepted his guilty plea and erred when it sentenced him to 240 months in prison, counsel concedes that the district court did not Hawkins sentence is reasonable. violate Rule 11 and that Hawkins has not filed a pro se supplemental brief despite receiving notice of his right to do so. The Government moves to dismiss the appeal as to Hawkins sentence based agreement. the appellate waiver in is defendant knowing may and waive the right intelligent. See to of voluntarily the and record supports knowingly the waived 2 appeal United Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). review Hawkins plea We affirm in part, and dismiss in part. A waiver on right that States v. Our independent conclusion his if to that Hawkins appeal his sentence. Thus, we conclude that the waiver is valid and not waive all enforceable. However, appellate claims. even a valid waiver does Specifically, a valid appeal waiver does not preclude a challenge to a sentence on the ground that it exceeds the statutory maximum or is based on a constitutionally impermissible factor such as race, arises from the denial of a motion to withdraw a guilty plea based on ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth Amendment right to counsel in proceedings following the See United States v. Johnson, 410 F.3d 137, 151 guilty plea. (4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). Moreover, the appellate waiver in Hawkins plea agreement did not waive: sentence were sentencing; (2) above certain (1) any challenges he may have if his the Guidelines ineffective range assistance calculated at of or counsel prosecutorial misconduct claims; or (3) any claims Hawkins may have pertaining to his conviction. Hawkins sentence is within the Guidelines range calculated at sentencing and he raises no claims that fall outside the scope of his appellate waiver. Thus, we grant the Government's motion to dismiss the appeal as to Hawkins sentence. Although we are charged under Anders with reviewing the record for unwaived error, we have reviewed the record in this case and have found no unwaived 3 meritorious issues for appeal. in part and affirm in part. We therefore dismiss the appeal This court requires that counsel inform Hawkins, in writing, of his right to petition the Supreme Court of the United States for further review. If Hawkins 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 Hawkins. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. DISMISSED IN PART, AFFIRMED IN PART 4
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