US v. Herman McCray, Jr., No. 14-4174 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4174 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HERMAN LEE MCCRAY, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:11-cr-00136-F-1) Submitted: November 25, 2014 Before KEENAN Circuit Judge. and WYNN, Circuit Decided: Judges, and December 8, 2014 DAVIS, Senior Affirmed in part and dismissed in part by unpublished per curiam opinion. R. Clarke Speaks, SPEAKS LAW FIRM PC, Wilmington, 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 Unpublished opinions are not binding precedent in this circuit.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: Herman Lee McCray, Jr., pled guilty, pursuant to a written plea agreement, to distributing a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2012). court sentenced him below the advisory The district U.S. Guidelines range to 144 months’ imprisonment. Sentencing McCray timely appealed. Counsel for McCray filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), averring there are no meritorious grounds for appeal, but questioning the substantive reasonableness supplemental offender. of brief McCray’s sentence. challenging his McCray filed designation as a a pro se career The Government has moved to dismiss the appeal based on the appellate waiver provision in McCray’s plea agreement. For the reasons that follow, we grant the Government’s motion and dismiss this appeal as to McCray’s sentence, and we affirm his conviction. We review de novo the validity of an appeal waiver. United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013). “We generally will enforce a waiver . . . if the record establishes that the waiver is valid and that the issue being appealed is within the scope of the waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal quotation marks and alteration omitted). 2 A defendant’s waiver is valid if he agreed to it “knowingly and intelligently.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). Our review knowingly and sentence, reserving excess of of the voluntarily the only record waived the Guidelines confirms the right range to right that McCray to appeal his a sentence in appeal established at sentencing. Because the district court imposed a below-Guidelines sentence, we grant the Government’s motion to dismiss and dismiss the appeal of McCray’s sentence. McCray’s review of his appeal waiver conviction. does Counsel not does preclude not appellate challenge the conviction on appeal, and our review of the record, conducted pursuant to Anders, revealed no potentially meritorious claims relevant to the validity of McCray’s conviction. We therefore affirm the judgment as to McCray’s conviction. This writing, of court his requires right to that petition United States for further review. a petition be filed, but counsel counsel the inform Supreme McCray, Court of in the If McCray requests that such believes that the petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. state that a copy of the motion 3 was Counsel’s motion must served on McCray. We dispense with contentions are oral argument adequately because presented in the the facts and legal materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4