US v. Dishea Davis, No. 11-5111 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5111 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DISHEA MARSEAN DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. W. Earl Britt, Senior District Judge. (2:10-cr-00033-BR-1) Submitted: September 28, 2012 Before KING and Circuit Judge. SHEDD, Circuit Decided: Judges, and October 31, 2012 HAMILTON, Senior Dismissed in part; affirmed in part by unpublished per curiam opinion. Leslie Carter Rawls, Charlotte, 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 Unpublished opinions are not binding precedent in this circuit.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: Dishea Marsean Davis appeals from his conviction and 120-month sentence following his guilty plea, pursuant to a plea agreement, to conspiracy to distribute and to possess with intent to distribute more than fifty grams of cocaine base and a quantity of cocaine, in violation of 21 U.S.C. ยงยง 841(a)(1), 846 (2006). Davis counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether the plea was voluntarily entered and whether the sentence violates the law or Davis constitutional rights. imposed Davis was advised of his right to file a pro se supplemental brief but did not do so. Upon our initial review of the appeal, we directed supplemental court s briefing explanation regarding of its the adequacy sentence, and of the Davis district filed a supplemental brief arguing that the district court failed to explain its sentence. asserting that the The Government has now moved to dismiss, appeal is precluded appellate rights in Davis plea agreement. by the waiver of We grant the motion in part, affirm in part, and dismiss in part. A defendant may waive the right to appeal if that waiver is knowing and intelligent. United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district court fully questions a defendant regarding the waiver of his 2 right to appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. General, 278 F.3d 389, 400-01 (4th Cir. 2002). Whether a defendant validly waived his appeal rights is a question of law that this court reviews de novo. Manigan, 592 F.3d at 626. Our review of the record leads us to conclude that Davis knowingly and voluntarily waived the right to appeal his sentence and that the issues he asserts are within the scope of the waiver. We therefore grant in part the Government s motion to dismiss, and dismiss the appeal of Davis sentence. The waiver provision, however, does not preclude our direct review of Davis conviction pursuant to Anders. We have reviewed the entire record and have found no issues that are meritorious and outside the scope of the waiver. deny in part the Government s motion to We therefore dismiss and affirm Davis conviction. This writing, of court his requires right to that petition United States for further review. counsel the inform Supreme Davis, Court of in the If Davis 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 Davis. 3 We dispense with oral argument adequately because presented in the the facts and materials legal contentions before the court are and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 4
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