US v. Kemp Mitchell, No. 13-4786 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4786 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEMP EARL MITCHELL, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:12-cr-00550-CCB-1) Submitted: April 17, 2014 Decided: April 21, 2014 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. Ron Earnest, LAW OFFICE OF RON EARNEST, Riverdale, Maryland, for Appellant. David I. Sharfstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kemp Earl Mitchell pled guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with intent to distribute received a heroin, 21 below-Guidelines imprisonment. On appeal, U.S.C. ยง sentence Mitchell s 846 of (2012). 144 counsel filed He months a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning the adequacy of the guilty plea colloquy and the propriety of Mitchell s sentence. Mitchell has filed a pro se supplemental brief challenging his sentence under Alleyne v. United States, 133 S. Ct. 2151 (2013), and the adequacy of the plea colloquy. He also alleges appellate counsel has assistance by filing an Anders brief. to dismiss Mitchell s appeal of rendered The Government has moved his sentence based appellate waiver provision in the plea agreement. Government s motion and dismiss ineffective Mitchell s on the We grant the appeal of his sentence, and we affirm Mitchell s conviction. 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. 2 (internal quotation marks omitted); see United States v. General, 278 F.3d 389, 400 (4th 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. Blick, 408 F.3d at 168. Our review of the record leads us to conclude that Mitchell s waiver intelligent. of appellate rights was knowing and Turning to the scope of the waiver, we conclude that the sentencing issues Mitchell raises in the Anders brief and the pro se supplemental brief fall within the scope of the appellate waiver provision. Thus, we grant the Government s motion to dismiss Mitchell s appeal of his sentence and dismiss this portion of the appeal. The waiver provision does not, however, preclude our review of Mitchell s conviction pursuant to Anders. We have reviewed the plea colloquy for plain error and have found none. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing standard); see also United States v. Olano, 507 U.S. 725, 732 (1993) (detailing plain error standard). The waiver provision also does not preclude our review of Mitchell s claim that appellate counsel rendered ineffective 3 assistance by failing to file a merits brief. Such claims, however, are not generally cognizable on direct appeal. States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). the record ineffective, does juncture. we not establish will not review that appellate Mitchell s United Because counsel claim at was this United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (providing standard). In accordance with Anders, we have reviewed the entire record and have found no unwaived and potentially meritorious issues for review. We therefore affirm Mitchell s convictions. This court requires that counsel inform Mitchell, in writing, of his right to petition the Supreme Court of the United States for further review. If Mitchell requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Mitchell. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4
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