UNITED STATES v. CLEVELAND (2020)

Patrick Isaiah Cleveland pleaded guilty, pursuant to a plea agreement, to possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The district court imposed a 75-month sentence. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), concluding that there are no meritorious grounds for appeal but questioning whether the district court failed to adequately address the 18 U.S.C. § 3553(a) factors in announcing Cleveland's sentence. Although advised of his right to file a pro se brief, Cleveland has not done so. The Government moves to dismiss the appeal based on the waiver of appellate rights in Cleveland'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 defendant understood the full significance of the waiver, the waiver is valid.” Id. (internal quotation marks omitted).

Our review of the record confirms that Cleveland knowingly and voluntarily waived his right to appeal, with limited exceptions not applicable here. We therefore conclude that the waiver is valid and enforceable and that counsel's challenge to the reasonableness of Cleveland's sentence 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 potentially meritorious grounds for appeal outside the scope of Cleveland's valid appellate waiver. Accordingly, we grant the Government's motion to dismiss in part and dismiss Cleveland's appeal as to all issues within the waiver's scope, and we deny the motion in part and otherwise affirm the judgment. This court requires that counsel inform Cleveland, in writing, of the right to petition the Supreme Court of the United States for further review. If Cleveland 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 Cleveland.

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.