UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4713

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY C. GERARD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Norfolk. Mark S. Davis, District Judge. (2:17-cr-00102-MSD-DEM-1)

Submitted: May 17, 2018 Decided: May 30, 2018

Before MOTZ and DUNCAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. Joseph 

Kosky, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Gary C. Gerard pled guilty, pursuant to a written plea agreement, to one count of 

access with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) 

(2012), and was sentenced to 66 months’ imprisonment. On appeal, Gerard’s counsel has 

filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that 

there are no meritorious issues for appeal, but questioning whether Gerard’s guilty plea 

was knowingly and voluntarily entered and whether his sentence is reasonable. Although 

advised of his right to file a supplemental pro se brief, Gerard has not done so. The 

Government seeks to dismiss the appeal based on the appellate waiver provision in the

plea agreement.

“A criminal defendant may waive the right to appeal if that waiver is knowing and 

voluntary.” United States v. Tate, 845 F.3d 571, 574 n.1 (4th Cir. 2017); United States v. 

Copeland, 707 F.3d 522, 528 (4th Cir. 2013). To determine whether the waiver is 

knowing and voluntary, this court often looks to the sufficiency of the plea colloquy and 

whether the district court questioned the defendant about the appeal waiver, but 

ultimately the determination turns on “the totality of the circumstances.” Copeland, 707 

F.3d at 528 (internal quotation marks omitted). In evaluating the totality of the 

circumstances, courts consider “the particular facts and circumstances surrounding [the] 

case, including the background, experience, and conduct of the accused.” United States 

v. Blick, 408 F.3d 162, 169 (4th Cir. 2005) (internal quotation marks omitted). This court 

“will enforce the waiver if it is valid and the issue appealed is within the scope of the 

waiver.” Copeland, 707 F.3d at 528 (internal quotation marks omitted). 
3

We have reviewed the transcript of the Fed. R. Crim. P. 11 hearing and find that 

Gerard knowingly and intelligently waived the right to appeal both his conviction and 

sentence. The district court specifically questioned Gerard about the written appellate 

waiver and confirmed that he understood he was waiving his right to appeal by entering 

the agreement. The terms of the waiver were “clear and unmistakable.” See Blick, 408 

F.3d at 169. Gerard does not contend that the district court failed to question him 

concerning the appellate waiver or that he did not understand the full significance of the 

waiver. Based on the totality of the circumstances, we find that Gerard’s appeal waiver 

was both knowing and intelligent and, therefore, enforceable as to issues within its scope. 

A valid waiver does not bar matters outside the scope of the waiver or prevent this 

court from correcting a miscarriage of justice. United States v. Adams, 814 F.3d 178, 182 

(4th Cir. 2016). Nor does Gerard’s appeal waiver bar his constitutional challenge to the 

knowing and voluntary nature of his guilty plea. See United States v. Attar, 38 F.3d 727, 

732-33 & n.2 (4th Cir. 1994). We have reviewed the record and conclude that the district 

court fully complied with the requirements of Rule 11 in ensuring that Gerard’s guilty 

plea was knowing, voluntary, and supported by a sufficient factual basis. Therefore, we 

find that his guilty plea was valid and affirm Gerard’s conviction. 

Counsel also questions whether Gerard’s sentence was reasonable. Because 

Gerard’s sentence did not exceed the statutory maximum, this claim falls within the scope 

of the waiver. Accordingly, we grant, in part, the Government’s motion and dismiss the 

appeal as to Gerard’s sentence.
4

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

have found no other meritorious grounds for appeal. We therefore dismiss the portion of 

the appeal challenging the reasonableness of Gerard’s sentence based on his valid 

appellate waiver and affirm the remainder of the district court’s judgment. This court 

requires that counsel inform Gerard, in writing, of the right to petition the Supreme Court 

of the United States for further review. If Gerard 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 Gerard.

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