US v. Waddy Agnew, No. 12-4558 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4558 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WADDY NATHAN AGNEW, a/k/a Gator, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:12-cr-00002-FL-1) Submitted: February 12, 2013 Decided: March 12, 2013 Before GREGORY, DUNCAN, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, 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 Unpublished opinions are not binding precedent in this circuit.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: Waddy Nathan Agnew pled guilty, pursuant to a plea agreement, to conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine and a quantity of cocaine base, in violation of 21 U.S.C. ยง 846 (2006), and was sentenced to 135 months imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds for appeal but questioning the calculation and reasonableness of Agnew s sentence. Agnew was informed of his right to file a pro se brief but has not done so. dismiss this appeal on The Government has filed a motion to the ground that Agnew knowingly intelligently waived the right to appeal his sentence. and For the reasons that follow, we dismiss in part and affirm in part. In his plea agreement, Agnew waived the right to appeal his sentence, except to the extent that it exceeded the Guidelines range established at sentencing. A defendant may waive is the right intelligent. (4th Cir. questions appeal if that waiver knowing and United States v. Poindexter, 492 F.3d 263, 270 2007). a to Generally, defendant if regarding the the district waiver of court his fully 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. Wessells, 936 F.2d 2 165, 167-68 (4th Cir. 1991). A review of the record reveals that the court determined Agnew was competent to plead guilty, had the opportunity to discuss his plea agreement with counsel, entered his guilty plea in the absence of threats or force, and understood the terms of his appeal waiver. Thus, we conclude that Agnew validly waived his right to appeal his sentence and that the claims raised on appeal fall within the scope of his waiver. 2005) United States v. Blick, 408 F.3d 162, 168 (4th Cir. (providing standard). Accordingly, we grant the Government s motion to dismiss in part and dismiss the appeal of Agnew s sentence. Although the waiver provision in the plea agreement precludes our review of Agnew s sentence, the waiver does not preclude our review of any errors in Agnew s conviction that may be revealed by our review pursuant to Anders. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. part the Government s motion to We therefore deny in dismiss and affirm Agnew s conviction. This writing, of court his requires right to that petition United States for further review. counsel the inform Supreme Agnew, Court of in the If Agnew requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for 3 leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Agnew. We dispense with oral legal contentions are before this and argument adequately because presented in the the facts and materials court argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 4