UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4036

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN DAWSON PIERCE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Elizabeth City. James C. Fox,

Senior District Judge. (2:09-cr-00011-F-1)

Submitted: February 1, 2011 Decided: March 14, 2011

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Jennifer P. May-Parker, Assistant United States 

Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a plea agreement, John Dawson Pierce pled 

guilty to operating a still without a license, in violation of 

26 U.S.C. § 5601(a)(4) (2006) (Count Two), and possession of a 

firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2006) 

(Count Five). The district court sentenced Pierce to thirty 

months of imprisonment. Pierce’s counsel filed a brief pursuant 

to Anders v. California, 386 U.S. 738 (1967), asserting that 

there are no meritorious grounds for appeal, but questioning

whether the district court procedurally erred in failing 

adequately to address Pierce’s motion for a variance sentence. 

Pierce did not file a pro se supplemental brief, although 

informed of his right to do so. The Government has moved to 

dismiss Pierce’s appeal of his sentence based on the appellate

waiver in his plea agreement. In response, Pierce contends that 

the Government’s motion is premature because this court has not 

yet conducted its review of the record, as required by Anders. 

A defendant may waive the right to appeal if that 

waiver is knowing and intelligent. United States v. Poindexter, 

492 F.3d 263, 270 (4th Cir. 2007). To determine whether a 

waiver is knowing and intelligent, this court examines “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 
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agreement.” United States v. General, 278 F.3d 389, 400 (4th 

Cir. 2002) (internal quotation marks omitted). 

Whether a defendant validly waived his right to appeal 

is a question of law that this court reviews de novo. United 

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Generally, 

if the district court fully questions a defendant regarding the 

waiver of his right to appeal during the Fed. R. Crim. P. 11 

colloquy, the waiver is valid and enforceable. United States v. 

Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We will enforce a 

valid waiver when “the issue being appealed is within the scope 

of the waiver.” Id.

Here, Pierce’s appeal waiver expressly precluded him 

from appealing any sentence within the advisory Guideline range 

established at sentencing. Because the sentence imposed was 

within that range, any challenge to the sentence, including the 

issue raised in Pierce’s Anders brief, falls within the scope of 

the waiver. Moreover, Pierce does not challenge the 

voluntariness of his waiver. Accordingly, we conclude that the 

waiver is enforceable and grant the Government’s motion to 

dismiss his appeal of the sentence.

The waiver, however, does not preclude our review of 

the conviction. We have examined the entire record in 

accordance with the requirements of Anders and have found no 
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unwaived and meritorious issues for appeal. Therefore, we 

affirm Pierce’s conviction.

This court requires that counsel inform Pierce in 

writing of his right to petition the Supreme Court of the United 

States for further review. If Pierce 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 Pierce. 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.

DISMISSED IN PART;

AFFIRMED IN PART