United States v. John Gibson, III

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 17, 2019
• Docket: 19-4304
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4304

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN GIBSON, III, a/k/a Cuddy Mo,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:18-cr-00431-ELH-3)

Submitted: October 15, 2019 Decided: October 17, 2019

Before GREGORY, Chief Judge, and THACKER and RUSHING, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore, Maryland, for Appellant. Lauren Elizabeth Perry, Paul Anthony Riley, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

John Gibson, III, seeks to appeal the 84-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 distribution

and possession with intent to distribute controlled substances, in violation of 21 U.S.C.

§§ 841(a)(1); 18 U.S.C. § 2 (2012). Gibson’s counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), questioning whether Gibson’s sentence is reasonable.

Although informed of his right to file a pro se supplemental brief, Gibson has not done so.

The Government has filed a motion to dismiss the appeal on the ground that

Gibson’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.) (internal

quotation marks omitted), cert. denied, 139 S. Ct. 494 (2018). Generally, “if a district court

questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.]

2 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 Gibson knowingly and voluntarily waived his right to appeal and that his

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 Gibson, in writing, of the right to petition the Supreme Court of the United States

for further review. If Gibson 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

Gibson.

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