US v. Antonio Blanding, No. 13-4367 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4367 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO BLANDING, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. W. Earl Britt, Senior District Judge. (4:12-cr-00098-BR-1) Submitted: December 17, 2013 Decided: December 19, 2013 Before KING, GREGORY, and WYNN, Circuit Judges. Dismissed in part and affirmed in part by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Antonio Blanding pled guilty, pursuant to a written plea agreement, to possession of a firearm as a convicted felon, 18 U.S.C. § 922(g) (2012), and was sentenced to seventy months of imprisonment, the bottom Sentencing Guidelines range. of his properly-calculated In the plea agreement, Blanding agreed to waive his right to appeal his sentence unless his sentence exceeded his advisory Sentencing Guidelines range and for any claims of ineffective prosecutorial misconduct. assistance of counsel or On appeal, Blanding s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting appeal, but that there questioning reference, under are whether U.S. no the meritorious district Sentencing grounds court s Guidelines for crossManual § 2K2.1(c)(1)(A) (2012), was correct because the gun at issue was unrelated Despite to notice, the heroin Blanding did also not found file a in Blanding s pro se home. supplemental brief. The Government has moved to dismiss Blanding s appeal based on the appellate waiver provision in his plea agreement. We dismiss in part and affirm in part. waiver of appellate rights de novo. We review a defendant s United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A defendant may waive his right to the appeal if that waiver is 2 result of a knowing and intelligent decision to forgo the right to appeal. United States v. Amaya Portillo, 423 F.3d 427, 430 (4th Cir. 2005). 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. Blick, 408 F.3d at 168. Our review of the record leads us to conclude that Blanding s waiver of appellate rights was knowing and intelligent. Government s motion to dismiss Therefore, we grant the Blanding s appeal as to his sentence and dismiss this portion of the appeal. The waiver provision does not, however, preclude our duty to however, review Blanding s reveals no conviction. meritorious scope of the appeal waiver. issues Our that Anders are review, outside the We therefore affirm the district court s judgment as to all issues not encompassed by Blanding s valid waiver of his right to appeal. This court requires that counsel inform Blanding, in writing, of his right to petition the Supreme Court of the United States for further review. If Blanding 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 3 Blanding. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED IN PART; AFFIRMED IN PART 4
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