US v. Vonzelle Carey, No. 12-4723 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4723 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VONZELLE WADE CAREY, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:12-cr-00032-GMG-DJJ-1) Submitted: March 28, 2013 Decided: April 1, 2013 Before NIEMEYER, KING, and KEENAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Stephen D. Herndon, Wheeling, West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant United States Attorney, Martinsburg, West Virginia; Stephen L. Vogrin, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a written plea agreement, Vonzelle Wade Carey pled guilty to distribution of a quantity of cocaine base, in violation of 21 U.S.C.A. ยง 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2012). rights to In the plea agreement, Carey agreed to waive all appeal any sentence within the maximum possible penalty provided in the statute of conviction, as well as the manner in which any such sentence was determined. Carey now appeals. Anders His counsel filed a brief pursuant to v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal and requesting that the court conduct the review required by Anders. Carey was advised of his right to file a pro se supplemental brief, but he has not done so. The Government has filed a motion to dismiss Carey s appeal based on the appellate waiver provision in his plea agreement. We dismiss in part and affirm in part. In the absence of a motion in the district court to withdraw a guilty plea, this court s review of the plea colloquy is for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). After reviewing the plea agreement and the transcript of the plea hearing, we conclude that the magistrate judge fully complied with the requirements of Fed. R. Crim. P. 11 when accepting Carey s guilty plea. 2 We review de novo a defendant s waiver of appellate rights. 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, omitted). To intelligent, we 430 (4th determine look Cir. whether to the (internal the waiver totality of quotation is the marks knowing and circumstances, including the experience and conduct of the accused, as well as the accused s educational background and familiarity with the terms of the plea agreement. F.3d 389, 400 (4th Cir. United States v. General, 278 2002) (internal quotation marks omitted). Our review of the record leads us to conclude that Carey knowingly and voluntarily waived the right to appeal his sentence. We therefore grant in part the Government s motion to dismiss and dismiss the appeal of Carey s sentence. The waiver provision, review however, does not preclude Carey s conviction pursuant to Anders. our direct of Accordingly, we have reviewed the entire record and have found no meritorious issues that are outside the scope of the waiver. 3 We therefore deny in part the Government s motion to dismiss and affirm Carey s conviction. This writing, of court his requires right to that petition United States for further review. counsel the inform Supreme Carey, Court of in the If Carey 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 Carey. 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