USCA4 Appeal: 23-4348 Doc: 31 Filed: 12/21/2023 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4348

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER W. THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:22-cr-00014-JPB-JPM-1)

Submitted: December 19, 2023 Decided: December 21, 2023

Before HARRIS, QUATTLEBAUM, and BENJAMIN, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

ON BRIEF: David Schles, Charleston, West Virginia, for Appellant. Clayton John Reid, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

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PER CURIAM:

Christopher W. Thomas appeals his conviction and 109-month sentence imposed

following his guilty plea to possession of methamphetamine with intent to distribute, in

violation of

(a)(1), (b)(1)(C). Thomas’ 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 Thomas’ guilty plea and the reasonableness of

the sentence. Although notified of his right to do so, Thomas has not filed a pro se

supplemental brief. The Government moves to dismiss the appeal pursuant to the appeal

waiver in Thomas’ plea agreement. We dismiss in part and affirm in part.

Thomas’ appeal waiver does not bar consideration of his appellate counsel’s

question regarding the validity of the guilty plea. See United States v. McCoy,

(4th Cir. 2018) (noting that an appeal that “goes to the propriety of the guilty plea

itself . . . is not barred by [an appeal] waiver” (internal quotation marks omitted)). Because

Thomas did not move in the district court to withdraw his guilty plea, we review the court’s

acceptance of his plea for plain error. United States v. Williams,

(4th Cir. 2016). “Under the plain error standard, [we] will correct an unpreserved error if

(1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and

(4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Harris,

(4th Cir. 2018) (internal

quotation marks omitted). In the guilty plea context, a defendant establishes that an error

affected his substantial rights by demonstrating “a reasonable probability that, but for the

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error, he would not have entered the plea.” United States v. Davila,

(2013) (internal quotation marks omitted).

A guilty plea is valid if the defendant voluntarily, knowingly, and intelligently pled

guilty “with sufficient awareness of the relevant circumstances and likely consequences.”

United States v. Fisher,

(4th Cir. 2013) (internal quotation marks

omitted). Accordingly, before accepting a guilty plea, the district court must conduct a

plea colloquy in which it informs the defendant of, and determines he understands, the

rights he is relinquishing by pleading guilty, the charge to which he is pleading, and the

maximum and mandatory minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United

States v. DeFusco,

(4th Cir. 1991). The court also must ensure that the

plea is voluntary and not the result of threats, force, or promises not contained in the plea

agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual basis for the plea,” Fed.

R. Crim. P. 11(b)(3); see also United States v. Stitz,

(4th Cir. 2017)

(discussing proof required to establish factual basis).

Here, Thomas consented to proceeding before a magistrate judge for the Fed. R.

Crim. P. 11 plea colloquy. The magistrate judge did not advise Thomas that the parties’

agreed-upon disposition of the remaining charges in the indictment would appear in the

judgment, see Fed. R. Crim. P. 11(c)(4), but because the district court dismissed those

charges in accordance with the plea agreement, the magistrate judge’s omission did not

affect Thomas’ substantial rights. Furthermore, the magistrate judge otherwise complied

with Rule 11, ensuring that Thomas’ plea was knowing, voluntary, and supported by a

factual basis. We therefore conclude that Thomas’ guilty plea is valid.

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Turning to Thomas’ appeal waiver, “[w]e review an appellate waiver de novo to

determine whether the waiver is enforceable” and “will enforce the waiver if it is valid and

if the issue being appealed falls within the scope of the waiver.” United States v. Boutcher,

(4th Cir. 2021) (internal quotation marks omitted). An appeal waiver is

valid if the defendant enters it “knowingly and intelligently, a determination that we make

by considering the totality of the circumstances.”

Typically, “if a district court

questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy

and the record indicates that the defendant understood the full significance of the waiver,

the waiver is valid.” McCoy,

(internal quotation marks omitted); see

Boutcher,

.

Our review of the record confirms that Thomas knowingly, voluntarily, and

intelligently waived his right to appeal and that the appeal waiver in the plea agreement is

valid and enforceable. Because Thomas’ counsel’s question regarding the reasonableness

of the sentence falls squarely within the scope of the valid waiver, which precludes all

appeals except those claiming ineffective assistance of counsel or prosecutorial

misconduct, the waiver bars review of that issue.

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

found no meritorious grounds for appeal outside the scope of Thomas’ valid appeal waiver.

We therefore grant in part the Government’s motion to dismiss and dismiss the appeal as

to all issues within the waiver’s scope. We deny the motion in part and affirm the

remainder of the criminal judgment. This court requires that counsel inform Thomas, in

writing, of the right to petition the Supreme Court of the United States for further review.

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If Thomas 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 Thomas.

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

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