UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4185

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CURTIS LAVON BRANCH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior 

District Judge. (4:11-cr-00082-F-1)

Submitted: October 11, 2012 Decided: October 23, 2012

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, James E. Todd, Jr., Research 

and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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: 

Curtis Lavon Branch pled guilty, pursuant to a plea 

agreement, to possession with intent to distribute cocaine 

hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (2006), and 

felon in possession of a firearm, in violation of 18 U.S.C. § 

922(g)(1) (2006). The district court sentenced Branch to 240 

months’ imprisonment on the first charge and 120 months’ 

imprisonment on the second, to be served concurrently. On 

appeal, Branch’s counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), stating that he found no 

meritorious issues for appeal but questioning whether the 

district court imposed a procedurally unreasonable sentence by 

basing the drug quantity determination and resulting advisory 

Guidelines range calculation upon uncorroborated hearsay of an 

unidentified informant. The Government has moved to dismiss 

Branch’s appeal, asserting that he waived the right to appeal 

his sentence in his plea agreement. We dismiss in part and 

affirm in part.

We review de novo whether a defendant has effectively 

waived his right to appeal. United States v. Marin, 961 F.2d 

493, 496 (4th Cir. 1992). An appellate waiver must be “the 

result of a knowing and intelligent decision to forgo the right 

to appeal.” United States v. Broughton-Jones, 71 F.3d 1143, 

1146 (4th Cir. 1995) (internal quotation marks and citation 
3

omitted). To determine whether a waiver is knowing and 

intelligent, this court examines the totality of the 

circumstances, including the accused’s experience, conduct, 

educational background, and familiarity with the plea 

agreement’s terms. United States v. General, 278 F.3d 389, 400 

(4th Cir. 2002). Generally, if a district court fully questions 

a defendant regarding the appellate waiver during the Rule 11 

colloquy, the waiver is both valid and enforceable. United 

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However, 

this court will refuse to enforce an otherwise valid waiver if 

enforcing the waiver would result in a miscarriage of justice. 

Id.

Upon review of the plea agreement and the transcript 

of the Fed. R. Crim. P. 11 hearing, we conclude that Branch 

knowingly and voluntarily waived the right to appeal his 

sentence. In the plea agreement, Branch agreed to waive the 

right to appeal “whatever sentence is imposed, including any 

issues that relate to the establishment of the advisory 

Guidelines range, reserving only the right to appeal from a 

sentence in excess of the applicable advisory Guidelines range.” 

Because the district court imposed a sentence within the 

advisory Guidelines range, the issue Branch seeks to raise on 

appeal falls within the scope of his appellate waiver. 
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Accordingly, we grant the Government’s motion to dismiss 

Branch’s appeal of his sentence.

The waiver provision, however, does not preclude this 

court’s review of Branch’s convictions pursuant to Anders. 

Prior to accepting a guilty plea, the district court must 

conduct a plea colloquy in which it informs the defendant of, 

and determines that the defendant understands: the nature of the 

charges to which he is pleading guilty, any mandatory minimum 

penalty, the maximum possible penalty, and the rights he is 

relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); 

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). 

Additionally, the district court must ensure that the 

defendant’s plea was voluntary and did not result from force, 

threats, or promises not contained in the plea agreement. Fed. 

R. Crim. P. 11(b)(2). We find that the district court complied 

with Rule 11’s requirements. In accordance with Anders, we have 

reviewed the record and have found no meritorious issues for 

appeal. We therefore affirm Branch’s convictions.

This court requires that counsel inform Branch, in 

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

United States for further review. If Branch requests that a 

petition be filed, but counsel believes that such petition would 

be frivolous, counsel may move in this court for leave to 

withdraw from representation. Counsel’s motion must state that 
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a copy thereof was served on Branch. 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