UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4523

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ONE MALE JUVENILE,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Lacy H. Thornburg,

District Judge. (CR-01-4)

Submitted: June 18, 2004 Decided: July 9, 2004

Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Reita P. Pendry, Charlotte, North Carolina, for Appellant. Robert

J. Conrad, Jr., United States Attorney, Charlotte, North Carolina,

Thomas R. Ascik, Assistant United States Attorney, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Vacated by Supreme Court, January 24, 2005
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PER CURIAM:

One Male Juvenile (“1MJ”) appeals his three-year sentence

to run consecutively with a state sentence he was then serving in

Florida following his guilty plea to one count of wire fraud, in

violation of 18 U.S.C. § 1343 (2000). 1MJ’s attorney has filed a

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

Although counsel states there are no meritorious issues for appeal,

she challenges the district court’s imposition of the sentence for

the wire fraud offense to run consecutively with the state sentence

1MJ was already serving. The Government filed a responding brief.

Although advised of his right to file a pro se supplemental brief,

1MJ has not done so. In accordance with Anders, we have considered

the briefs and examined the entire record for meritorious issues.

Finding no error, we affirm.

We find that 1MJ waived his right to appeal his

conviction and sentence either directly or in post-conviction

proceedings, with the exception of claims of ineffective assistance

of counsel and prosecutorial misconduct. It is well-settled that

a defendant may, in a valid plea agreement, waive the right to

appeal under 18 U.S.C. § 3742 (2000), as long as it is the result

of a knowing and intelligent decision to forego the right to

appeal. United States v. Wessells, 936 F.2d 165 (4th Cir. 1991).

Generally, if the district court fully questions the defendant

regarding the waiver of his right to appeal during the Fed. R.
*

The parties expressly consented to administration of the

guilty plea hearing by a magistrate judge.

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Crim. P. 11 colloquy, the waiver is both valid and enforceable.

Id. at 167-68. We review de novo the validity of a waiver. United

States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000). 

A review of the transcript of the guilty plea hearing

reveals that the magistrate judge* fully complied with Rule 11 in

accepting 1MJ’s guilty plea. The magistrate judge advised 1MJ of

the elements of the offense to which he was pleading guilty and

concluded he understood them. The judge also thoroughly apprised

1MJ of the rights he was waiving by pleading guilty and the

possible sentence he faced. Importantly, the magistrate judge

specifically asked 1MJ whether he understood that pursuant to the

plea agreement he was waiving his appellate and post-conviction

rights, except in relation to claims of ineffective assistance of

counsel and prosecutorial misconduct. 1MJ acknowledged his

understanding and noted that he knowingly and willingly accepted

this limitation. The magistrate judge further ascertained that 1MJ

was entering his plea voluntarily and that he was satisfied with

the services of counsel. For these reasons, we find 1MJ’s waiver

was knowing and intelligent. Accordingly, he may not appeal his

sentence. 

In accordance with Anders, we have reviewed the entire

record in this case, including the Rule 11 and sentencing
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transcripts, and have found no meritorious issues for appeal. We

therefore affirm 1MJ’s sentence. This court requires that counsel

inform her client, in writing, of his right to petition the Supreme

Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

to withdraw from representation at that time. Counsel’s motion

must state that a copy thereof was served on 1MJ.

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