UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4705

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CLYON HINNANT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Malcolm J. Howard, 

Senior District Judge. (5:11-cr-00354-H-1)

Submitted: March 20, 2013 Decided: April 19, 2013

Before KING, DIAZ, and THACKER, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 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Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Clyon Hinnant appeals his conviction and 48-month 

sentence, following a guilty plea, to one count of receiving a 

bribe as a public official, in violation of 18 U.S.C. 

§ 201(b)(2) (2006), and one count of conspiracy to commit wire 

fraud, in violation of 18 U.S.C. § 1349 (2006). (E.R. 84-90, 

181-86). Hinnant’s counsel 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 abused its discretion by failing to make an 

individualized assessment of Hinnant’s situation when it refused 

to grant a downward variance. Hinnant was notified of his right 

to file a supplemental pro se brief but has not done so. The 

Government has moved to dismiss the appeal, asserting that the 

appeal is precluded by Hinnant’s waiver of appellate rights in 

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

A defendant may, in a valid plea agreement, waive the 

right to appeal under 18 U.S.C. § 3742 (2006). United States v. 

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). 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 omitted). This court reviews de novo whether a 
3

defendant has effectively waived the right to appeal. United 

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). 

To determine whether a waiver was knowing and 

intelligent, we examine the totality of the circumstances, 

including the defendant’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 court fully questions a defendant regarding the 

appellate waiver 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). However, we will not enforce 

an otherwise valid waiver if enforcing the waiver would result 

in a miscarriage of justice. Id.

Our review of the record shows that Hinnant knowingly 

and voluntarily waived the right to appeal his sentence. We 

further conclude that the issue Hinnant now asserts on appeal is 

within the scope of the waiver. Hinnant waived the right to 

appeal his sentence unless the district court imposed a sentence 

in excess of the applicable Guidelines range. Because Hinnant 

challenges the reasonableness of his sentence, and the district 

court imposed a within-Guidelines sentence, the issue Hinnant 

seeks to raise on appeal falls squarely within the scope of the 

appellate waiver. We therefore grant the Government’s motion to 

dismiss Hinnant’s appeal of his sentence. 
4

The waiver provision, however, does not preclude our 

review of Hinnant’s conviction 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 supported by a factual basis. Fed. R. Crim. P. 

11(b)(2), (3). Because Hinnant did not seek to withdraw his 

guilty plea or otherwise object during his Rule 11 hearing, this 

court reviews his plea colloquy for plain error. United 

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). 

We find that the district court substantially complied 

with Rule 11 in accepting Hinnant’s plea. Although the district 

court failed to inform Hinnant that he could be prosecuted for 

perjury if he lied during the hearing, see Fed. R. Crim. P. 

11(b)(1)(A), and did not explicitly state that Hinnant had the 

right to plead not guilty, see Fed. R. Crim. P. 11(b)(1)(B), we 

find that these minor omissions did not affect Hinnant’s 

substantial rights. Accordingly, we find that Hinnant’s plea 

was knowing and voluntary, and, consequently, final and binding. 
5

See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) 

(en banc). 

In accordance with Anders, we have reviewed the record 

and have found no meritorious issues for appeal. We therefore 

affirm Hinnant’s conviction, and dismiss the appeal as to his 

sentence. This court requires that counsel inform Hinnant, in 

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

United States for further review. If Hinnant requests that a 

petition be filed but counsel believes such a petition would be 

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

from representation. Counsel’s motion must state that a copy 

thereof was served on Hinnant. 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. 

DISMISSED IN PART;

AFFIRMED IN PART