UNITED STATES v. POULSON SB (2019)

Shannon Poulson seeks to appeal the 240-month sentence imposed following his guilty plea to conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). Poulson’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), examining the Fed. R. Crim. P. 11 hearing and reasonableness of Poulson’s sentence, but ultimately conceding that there are no meritorious grounds for appeal. Although informed of his right to file a pro se supplemental brief, Poulson has not done so.

The Government has filed a motion to dismiss the appeal on the ground that Poulson’s appeal is barred by the appeal waiver included in the plea agreement. We review de novo the validity of an appeal waiver. United States v. Cohen, 888 F.3d 667, 678 (4th Cir. 2018). Where, as here, the Government seeks to enforce the appeal waiver and has not breached the plea agreement, we will enforce the waiver if it is valid and the issue being appealed falls within the waiver’s scope. United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A defendant validly waives his appeal rights if he agreed to the waiver “knowingly and intelligently.” Id. To determine whether a waiver is knowing and intelligent, “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), cert. denied, ––– U.S. ––––, 139 S. Ct. 494, 202 L.Ed.2d 386 (2018). Generally, “if a district court questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid.” Id. (internal quotation marks omitted).

Upon review of the plea agreement and the transcript of the Rule 11 hearing, we conclude that Poulson knowingly and voluntarily waived his right to appeal and that any challenge to his sentence falls squarely within the compass of the appellate waiver. Accordingly, we grant the Government’s motion in part.

Pursuant to Anders, we have reviewed the entire record and have found no meritorious issues for appeal that fall outside the scope of the appeal waiver. We therefore affirm the remainder of the district court’s judgment. This court requires that counsel inform Poulson, in writing, of the right to petition the Supreme Court of the United States for further review. If Poulson 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 Poulson.

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

PER CURIAM:

Affirmed in part and dismissed in part by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.