US v. Gerald Banks, No. 11-5198 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5198 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GERALD LEE BANKS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (4:11-cr-00034-F-2) Submitted: November 2, 2012 Decided: November 21, 2012 Before WILKINSON, SHEDD, and THACKER, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. David L. Neal, Hillsborough, 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 Unpublished opinions are not binding precedent in this circuit.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 Gerald aggregate Lee 240-month Banks appeals sentence his imposed convictions by the and district the court following his guilty plea, pursuant to a written plea agreement, to Hobbs Act robbery and use or carrying of a firearm during and in relation to a crime of violence. On appeal, Banks 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 the district court s application of a sentencing enhancement for restraint of the victim in accordance with U.S. Sentencing Guidelines Manual ยง 3A1.3 (2010). Despite receiving notice of his right to file a pro se supplemental brief, Banks has declined to do so. The Government has filed a motion to dismiss Banks appeal of his sentence based on the appellate waiver provision in the plea agreement. Government s motion in part, dismiss Banks We grant the appeal of his sentence, and affirm Banks convictions. We review a defendant s waiver of appellate rights de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A defendant may waive his right to appeal if that waiver is the result of a knowing and intelligent decision to forgo the right to appeal. United States v. Amaya-Portillo, 423 2005) F.3d 427, 430 (4th Cir. (internal quotation marks omitted); see United States v. General, 278 F.3d 389, 400 (4th 2 Cir. 2002) (providing standard). Generally, if the district court fully questions the defendant about the waiver during the Fed. R. Crim. P. 11 plea colloquy, the waiver is valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We will enforce a valid waiver so long as the issue being appealed is within the scope of the waiver. 408 F.3d at 168. that Banks Our review of the record leads us to conclude waiver intelligent. Blick, of appellate rights was knowing and Turning to the scope of the waiver, we conclude that the sentencing issues Banks raises in the Anders brief fall within the addition, scope there of are the no appellate other waiver meritorious outside of the scope of the waiver. provision. sentencing In issues Thus, we grant in part the Government s motion to dismiss Banks appeal of his sentence. The waiver provision, however, does not preclude our review of Banks convictions pursuant to Anders. In accordance with Anders, we have reviewed the entire record and have found no unwaived and potentially meritorious issues for review. We therefore affirm Banks convictions. This writing, of court his requires right to that petition United States for further review. counsel the inform Supreme Banks, Court of in the If Banks requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to 3 withdraw from representation. Counsel s motion must state that a copy thereof was served on Banks. 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. AFFIRMED IN PART; DISMISSED IN PART 4
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