Opinion
21-4611
06-30-2022
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID JOVAN MCDONALD, Defendant-Appellant.
Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
UNPUBLISHED
Submitted: June 28, 2022
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:19-cr-00515-D-1)
ON BRIEF:
Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant.
David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before NIEMEYER and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
David Jovan McDonald pled guilty, pursuant to a written plea agreement, to distribution of a quantity of heroin and five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court sentenced McDonald to 108 months' imprisonment. On appeal, McDonald's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning whether the district court erred by failing to order the disclosure of the identity of the confidential informant involved in McDonald's case. McDonald has not filed a pro se supplemental brief, although he was notified of his right to do so. The Government moves to dismiss the appeal as barred by the appellate waiver included in McDonald's plea agreement. We dismiss in part and affirm in part.
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. 2018) (internal quotation marks omitted). Generally, "if a district court questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.] 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 McDonald knowingly and voluntarily waived his right to appeal and that the issue raised in the Anders brief falls squarely within the compass of the appellate waiver. Accordingly, we grant the Government's motion in part.
In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal that fall outside of the appeal waiver. We therefore grant the Government's motion to dismiss in part and affirm the remainder of the district court's judgment. This court requires that counsel inform McDonald, in writing, of the right to petition the Supreme Court of the United States for further review. If McDonald 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 McDonald.
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