UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4106

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CLINTON KENT FRENCH,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:17-cr-00671-CMC-1)

Submitted: January 22, 2019 Decided: January 24, 2019

Before MOTZ, KEENAN, and FLOYD, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Christopher R. Geel, GEEL LAW FIRM, LLC, Charleston, South Carolina, for Appellant. John David Rowell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Clinton Kent French appeals his conviction and sentence for possession of a

firearm in furtherance of a drug trafficking offense, in violation of

(c)(1)(A)(i) (2012), and possession of a firearm by a convicted felon, in violation of

(g)(1), 924(e) (2012). French pled guilty pursuant to a written plea

agreement and was sentenced to a within-Guidelines sentence of 262 months in prison

and 5 years of supervised release. On appeal, appellate counsel for French filed a brief

pursuant to Anders v. California,

(1967), asserting that there are no

meritorious issues for appeal but seeking review of the voluntariness of French’s guilty

plea and the reasonableness of his sentence. French did not file a pro se supplemental

brief despite notice of his right to do so. The government filed an unopposed motion to

dismiss the appeal as barred by the appellate waiver contained in French’s plea

agreement. We grant the government’s motion.

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

(4th Cir. 2013). We generally will enforce a waiver “if the record

establishes that the waiver is valid and that the issue being appealed is within the scope of

the waiver.” United States v. Thornsbury,

(4th Cir. 2012) (internal

quotation marks omitted). A defendant’s waiver is valid if he “knowingly and

intelligently agreed to it.” United States v. Manigan,

(4th Cir. 2010).

Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11

hearing, we conclude that French knowingly and voluntarily waived his right to appeal

2 his conviction and sentence, with certain specified exceptions. Thus, we conclude that

the waiver is valid and enforceable.

However, even a valid waiver does not waive all appellate claims. Specifically, a

valid appeal waiver does not preclude a challenge to a sentence on the ground that it

exceeds the statutory maximum or is based on a constitutionally impermissible factor

such as race, arises from the denial of a motion to withdraw a guilty plea based on

ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth

Amendment right to counsel in proceedings following the guilty plea. See United States

v. Johnson,

(4th Cir. 2005); United States v. Craig,

(4th Cir. 1993). Moreover, the appellate waiver in French’s plea agreement does not

waive claims alleging ineffective assistance of counsel or prosecutorial misconduct, nor

does it waive claims based on future changes to the law that affect French’s sentence.

The claims raised by counsel on appeal clearly fall within the scope of the broad

appellate waiver, which the government seeks to enforce. In accordance with Anders, we

have reviewed the record in this case and have found no meritorious issues for appeal

outside the scope of the waiver. We therefore grant the government’s motion and dismiss

the appeal in part and affirm the criminal judgment in part. We deny without prejudice

counsel’s motion to withdraw.

This court requires that counsel inform French, in writing, of the right to petition

the Supreme Court of the United States for further review. If French 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

3 motion must state that a copy thereof was served on French. 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 IN PART, AFFIRMED IN PART

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