UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4881

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KENNETH C. PHIPPS,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:09-cr-00433-HEH-1)

Submitted: March 31, 2011 Decided: April 5, 2011

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Stephen P. Hanna, Richmond, Virginia, for Appellant. Peter 

Sinclair Duffey, Assistant United States Attorney, Richmond, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kenneth C. Phipps pled guilty to conspiracy to 

distribute cocaine and possession of a firearm in furtherance of 

a drug trafficking crime. The district court sentenced him to 

180 months’ imprisonment — 120 months for the conspiracy 

conviction and a consecutive sixty months on the firearm 

offense. On appeal, counsel has filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), stating that there 

are no meritorious issues for appeal but questioning whether the 

district court erred by sentencing Phipps to a consecutive term 

on the firearm offense when the mandatory minimum sentence on 

the drug charge was sufficient to accomplish the goals of 

sentencing. Phipps was informed of his right to file a pro se 

supplemental brief but has not done so. The Government has 

moved to dismiss the appeal based upon Phipps’ waiver of his 

appellate rights. We affirm in part and dismiss in part.

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). 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 both valid and enforceable. United States v. Johnson, 

410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells, 

936 F.2d 165, 167-68 (4th Cir. 1991). The question of whether a
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defendant validly waived his right to appeal is a question of 

law that we review de novo. United States v. Blick, 408 F.3d 

162, 168 (4th Cir. 2005).

Our review of the record leads us to conclude that 

Phipps knowingly and voluntarily waived the right to appeal his 

sentence. Moreover, the issue raised on appeal is a sentencing 

issue, which falls within the scope of the waiver. We therefore 

grant, in part, the Government’s motion to dismiss and dismiss 

this portion of the appeal.

Although the waiver provision in the plea agreement 

precludes our review of the sentence, the waiver does not 

preclude our review of any errors in Phipps’ conviction that may 

be revealed by our review pursuant to Anders. Our review of the 

transcript of the plea colloquy convinces us that the district 

court fully complied with the mandates of Rule 11 in accepting 

Phipps’ guilty plea. The district court ensured that the plea 

was entered knowingly and voluntarily and was supported by an 

independent factual basis. See United States v. DeFusco, 949 

F.2d 114, 116, 119-20 (4th Cir. 1991). Thus, we deny, in part, 

the Government’s motion to dismiss and we affirm the conviction.

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues not 

covered by the waiver. We therefore affirm Phipps’ conviction

and dismiss the appeal of his sentence. We deny counsel’s 
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motion to withdraw. This court requires that counsel inform his 

client, in writing, of the 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 renew his motion 

in this court for leave to withdraw from representation. 

Counsel’s motion must state that a copy thereof was served on 

the client. 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