UNITED STATES OF AMERICA v. KENDRICK DAVIS

Reset A A Font size: Print

United States Court of Appeals, Fourth Circuit.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENDRICK DAVIS, Defendant - Appellant.

No. 16-4095

Decided: October 03, 2016

Before SHEDD, KEENAN, and HARRIS, Circuit Judges. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Kendrick Davis pled guilty to distribution of Fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and was sentenced at the bottom of his advisory Sentencing Guidelines range to 151 months' imprisonment. On appeal, counsel for Davis has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal and acknowledging Davis' waiver of appellate rights but questioning whether the district court's sentence was substantively reasonable. Davis has not filed a pro se supplemental brief despite notice of his right to do so. The Government has moved to dismiss the appeal as barred by the appellate waiver included in Davis' plea agreement.

Pursuant to a plea agreement, a defendant may waive his appellate rights under 18 U.S.C. § 3742 (2012). United States v. Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135 S. Ct. 1579 (2015). A waiver will preclude an appeal of “a specific issue if ․ the waiver is valid and the issue being appealed is within the scope of the waiver.” Id. 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). Whether a defendant validly waived his right to appeal is a question of law that we review de novo. United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Davis knowingly and voluntarily waived his right to appeal his conviction and sentence. The sentencing claim raised on appeal clearly falls within the scope of this broad waiver. We have reviewed the entire record in accordance with Anders and have found no meritorious issues for appeal outside the scope of the waiver. Therefore, we grant the motion to dismiss and dismiss Davis' appeal.

This court requires that counsel inform Davis, in writing, of his right to petition the Supreme Court of the United States for further review. If Davis requests that such a petition be filed, but counsel 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 Davis. 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.

DISMISSED

PER CURIAM: