US v. John Westmoreland, No. 21-4720 (4th Cir. 2022)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-4720 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN SHERMAN WESTMORELAND, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:20-cr-00486-CCE-1) Submitted: November 22, 2022 Decided: November 28, 2022 Before HARRIS and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed in part and dismissed in part by unpublished per curiam opinion. ON BRIEF: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North Carolina, for Appellant. Margaret McCall Reece, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Sherman Westmoreland pled guilty, pursuant to a written plea agreement, to possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a). The district court sentenced Westmoreland to 120 months of imprisonment and he now appeals. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but questioning the validity and scope of Westmoreland’s appellate waiver and the reasonableness of Westmoreland’s sentence. Although notified of his right to do so, Westmoreland has not filed a pro se supplemental brief. The Government has moved to dismiss the appeal pursuant to the appellate waiver in Westmoreland’s plea agreement. We affirm in part and dismiss in part. We review the validity of an appellate waiver de novo and “will enforce the waiver if it is valid and the issue appealed is within the scope of the waiver.” United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). A waiver is valid if it is “knowing and voluntary.” Id. To determine whether a waiver is knowing and voluntary, “we consider the totality of the circumstances, including the experience and conduct of the defendant, his educational background, and his knowledge of the plea agreement and its terms.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal quotation marks omitted). Generally, “if a district court questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the 2 defendant understood the full significance of the waiver, the waiver is valid.” Id. (internal quotation marks omitted). Our review of the record confirms that Westmoreland knowingly and voluntarily waived his right to appeal his convictions and sentence, with limited exceptions not applicable here. We therefore conclude that the waiver is valid and enforceable and that the issue counsel raises falls squarely within the scope of the waiver. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal outside the scope of Westmoreland’s appellate waiver. We therefore grant in part the Government’s motion to dismiss and dismiss the appeal as to all issues within the waiver’s scope. We affirm the remainder of the district court’s judgment. This court requires that counsel inform Westmoreland, in writing, of the right to petition the Supreme Court of the United States for further review. If Westmoreland 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 Westmoreland. 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 3
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