The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RACHELE LANEE BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:11-cr-00047-1)
Submitted: March 23, 2012 Decided: April 6, 2012
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. R.
Booth Goodwin, II, United States Attorney, William Bryan King,
II, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rachele Lanee Brown pled guilty pursuant to a plea
agreement to conspiracy to distribute oxycodone, in violation of
21 U.S.C. § 846 (2006), and was sentenced to fifteen months in
prison. Counsel has filed an appeal pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states that
“because of the appeal waiver provision in Brown’s plea
agreement, there appears to be no meritorious ground for
appeal.” Counsel nonetheless identifies as a possible issue for
this court’s review whether Brown’s fifteen-month sentence is
reasonable in light of the purposes of sentencing set forth in
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2011). Brown has not
filed a pro se supplemental brief despite receiving notice of
her right to do so. The Government moves to dismiss the appeal
based on the appellate waiver in Brown’s plea agreement. We
affirm in part and dismiss in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. See United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent
review of the record supports the conclusion that Brown
voluntarily and knowingly waived her right to appeal her
sentence. Thus, we conclude that the waiver is valid and
enforceable.
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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, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993). Moreover, the appellate waiver in Brown’s plea
agreement did not waive: (1) any challenges she may have if her
sentence were above the Guidelines range associated with the
adjusted offense level determined by the district court, prior
to consideration of acceptance of responsibility or any
departure or variance; (2) ineffective assistance of counsel
claims; or (3) any claims Brown may have pertaining to her
conviction. Brown’s sentence is below the Guidelines range
associated with her unreduced adjusted offense level and, thus,
she raises no claims that fall outside the scope of her
appellate waiver.
Accordingly, we grant the Government's motion to
dismiss the appeal as to Brown’s sentence. Although we are
charged under Anders with reviewing the record for unwaived
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error, we have reviewed the record in this case and have found
no unwaived meritorious issues for appeal. We therefore dismiss
the appeal in part and affirm in part. This court requires that
counsel inform Brown, in writing, of her right to petition the
Supreme Court of the United States for further review. If Brown
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Brown. 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 the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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