United States v. Anthony Higson

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 23, 2019
• Docket: 18-4422
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4422

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY HIGSON, a/k/a Tony,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Margaret B. Seymour, Senior District Judge. (2:16-cr-00780-MBS-5)

Submitted: May 20, 2019 Decided: May 23, 2019

Before DIAZ and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

James R. Battle, II, BATTLE LAW FIRM, LLC, Conway, South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Anthony Higson pleaded guilty to conspiracy to distribute and possess with intent

to distribute methamphetamine, in violation of 21 U.S.C. § 846 (2012). The district court

sentenced Higson to 210 months in prison and he now appeals. On appeal, counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether

the sentence is procedurally and substantively unreasonable. Higson was advised of his

right to file a pro se supplemental brief, but has not done so. The Government, however,

has moved to dismiss the appeal based on the waiver of appellate rights contained in the

plea agreement. For the reasons that follow, we affirm in part and dismiss in part.

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). A

waiver will preclude appeal of a specific issue if the waiver is valid and the issue is

within the scope of the waiver. Id. Whether a defendant validly waived his right to

appeal is a question of law that we review de novo. Id. at 168.

“The validity of an appeal waiver depends on whether the defendant knowingly

and intelligently agreed to waive the right to appeal.” United States v. Blick, 408 F.3d

162, 169 (4th Cir. 2005). To determine whether a waiver is knowing and intelligent, this

Court examines “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.), cert. denied, 139 S.

Ct. 494 (2018) (internal quotation marks omitted). Generally, if the district court fully

2 questions a defendant regarding the waiver of his right to appeal during the Fed. R. Crim.

P. 11 colloquy, the waiver is both valid and enforceable. Id.

Moreover, the purpose of the Rule 11 colloquy is to ensure that the guilty plea is

entered into knowingly and voluntarily See United States v. Vonn, 535 U.S. 55, 58

(2002). Prior to accepting a guilty plea, a trial court must inform the defendant of, and

determine that he understands, the nature of the charges to which the plea is offered, any

mandatory minimum penalty, the maximum possible penalty he faces, and the various

rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). The court also must

determine whether there is a factual basis for the plea. Id.; United States v. DeFusco, 949

F.2d 114, 120 (4th Cir. 1991).

We have thoroughly reviewed the record and conclude that the district court fully

complied with the requirements of Rule 11. We further conclude that Higson voluntarily

pleaded guilty and that his waiver of his appellate rights was knowing and intelligent. As

part of his plea agreement, Higson waived the right to appeal his conviction and any

sentence except for claims of ineffective assistance of counsel, prosecutorial misconduct,

or future changes in the law that affect Higson’s sentence. Here, we have concluded that

Higson’s guilty plea was knowing and voluntary, and the district court sentenced Higson

within the statutory range. The challenges to his sentence that Higson seeks to raise on

appeal are, therefore, waived.

We have examined the entire record in accordance with the requirements of

Anders and have found no meritorious issues for appeal. Accordingly, we affirm in part

and grant the Government’s motion to dismiss in part. This court requires that counsel

3 inform Higson, in writing, of the right to petition the Supreme Court of the United States

for further review. If Higson 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 Higson. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument

would not aid in the decisional process.

AFFIRMED IN PART, DISMISSED IN PART