UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4425

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARCUS CURETON,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:16-cr-00087-RDB-1)

Submitted: December 20, 2018 Decided: December 26, 2018

Before DIAZ and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring, Maryland, for Appellant. Patricia Corwin McLane, Assistant United States Attorney, Lauren Elizabeth Perry, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Marcus Cureton appeals his convictions and 180-month sentence imposed

following his guilty plea to Hobbs Act robbery and conspiracy to commit the same, in

violation of

(a) (2012). On appeal, Cureton’s counsel has filed a brief

pursuant to Anders v. California,

(1967), stating that there are no

meritorious grounds for appeal but questioning the validity of Cureton’s guilty plea and

the reasonableness of his sentence. Although notified of his right to do so, Cureton has

not filed a pro se supplemental brief. The Government has moved to dismiss the appeal

based on the appeal waiver contained in Cureton’s Fed. R. Crim. P. 11(c)(1)(C) plea

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

We review the validity of an appeal waiver de novo. United States v. Thornsbury,

(4th Cir. 2012). An appeal waiver “preclude[s] a defendant from

appealing a specific issue if the record establishes that the waiver is valid and the issue

being appealed is within the scope of the waiver.” United States v. Archie,

(4th Cir. 2014). A defendant validly waives his appeal rights if he agreed to the

waiver “knowingly and intelligently.” United States v. Manigan,

(4th

Cir. 2010). “To determine whether a waiver is knowing and intelligent, we examine the

totality of the circumstances, including the experience and conduct of the accused, as

well as the accused’s educational background and familiarity with the terms of the plea

agreement.” Thornsbury,

(internal quotation marks omitted). Generally,

if a court fully questions a defendant regarding the waiver of his right to appeal during

2 the Rule 11 colloquy, the waiver is both valid and enforceable. United States v. Johnson,

(4th Cir. 2005).

Our review of the Rule 11 colloquy confirms that Cureton knowingly and

voluntarily waived his right to appeal his convictions and any sentence lower than or

equal to 180 months. Because the district court imposed the parties’ agreed-upon 180-

month sentence, we conclude that Cureton’s valid appeal waiver bars his sentencing

challenge. Accordingly, we grant the Government’s motion to dismiss in part and

dismiss the appeal as to Cureton’s sentencing claim and any other issues within the

compass of the waiver.

However, because a defendant cannot waive a colorable claim that his plea was

not knowing and voluntary, see, e.g., United States v. Attar,

, 732-33 & n.2

(4th Cir. 1994), we consider the validity of Cureton’s guilty plea. Before accepting a

guilty plea, the district court must conduct a colloquy in which it informs the defendant

of, and determines that he understands, the nature of the charges to which he is pleading

guilty, any mandatory minimum penalty, the maximum penalty he faces, and the rights he

is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco,

(4th Cir. 1991). The court also must ensure that the defendant’s plea

is voluntary and supported by an independent factual basis. Fed. R. Crim. P. 11(b)(2),

(3). Because Cureton did not move to withdraw his guilty plea or otherwise preserve any

error in the plea proceedings, we review the adequacy of the plea colloquy for plain error.

United States v. Massenburg,

(4th Cir. 2009). Based on our review of

the Rule 11 hearing, we conclude that Cureton’s plea was knowing, voluntary, and

3 supported by an independent basis in fact, and that the district court therefore committed

no error in accepting Cureton’s valid guilty plea.

In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious grounds for appeal that fall outside the scope of Cureton’s

valid appeal waiver. Accordingly, we dismiss the appeal in part and affirm the district

court’s judgment as to any issues not precluded by the appeal waiver. This court requires

that counsel inform Cureton, in writing, of the right to petition the Supreme Court of the

United States for further review. If Cureton 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 Cureton.

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

4