US v. Christie Herrera, No. 14-4381 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4381 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTIE LYNN HERRERA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:13-cr-00070-D-3) Submitted: November 20, 2014 Decided: November 24, 2014 Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part and dismissed in part by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, 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 Unpublished opinions are not binding precedent in this circuit.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: Christie Lynn Herrera pled guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with the violation intent of 21 to distribute U.S.C. § 846 a quantity (2012). of The cocaine, district in court sentenced her, below the advisory Guidelines range, to eightyfour months’ imprisonment. Herrera timely appealed. Counsel for Herrera 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 of Herrera’s sentence. Herrera was advised of her right to file a pro se supplemental brief but did not do so. The Government has moved to dismiss the appeal of Herrera’s sentence based on the appellate waiver provision in her plea agreement. For Government’s motion the and reasons dismiss that follow, this appeal we as to grant the Herrera’s sentence, and we affirm her 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 she 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 Herrera to appeal her 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 Herrera’s sentence. Herrera’s review of her appeal conviction. waiver 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 Herrera’s conviction. We therefore affirm the judgment as to Herrera’s conviction. This court requires that counsel inform Herrera, in writing, of her right to petition United States for further review. a petition be filed, but counsel the Supreme Court of the If Herrera requests that such believes that the 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 of the motion was served on Herrera. 3 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