UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4387

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DON MCALLISTER,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:09-cr-00096-JPB-DJJ-1)

Submitted: October 7, 2010 Decided: November 12, 2010

Before MOTZ, DAVIS, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Kevin D. Mills, MILLS & ASSOCIATES, P.L.L.C., Martinsburg, West 

Virginia, for Appellant. Betsy C. Jividen, United States 

Attorney, Paul T. Camilletti, Assistant United States Attorney, 

Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Don McAllister appeals the criminal judgment entered

following his guilty plea, pursuant to a written plea agreement, 

to possession with intent to distribute cocaine base, in 

violation of 21 U.S.C. § 841(a)(1) (2006). On appeal, counsel 

filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), noting that McAllister waived his right to appeal his 

sentence but questioning whether the district court abused its 

discretion in denying McAllister’s unopposed motion to continue 

the sentencing hearing. McAllister was informed of his right to 

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

Government has filed a motion to dismiss the appeal based on the 

appellate waiver provision in McAllister’s plea agreement. 

McAllister opposes the motion, arguing that the issue raised is 

outside the scope of the appellate waiver.

We review a defendant’s waiver of appellate rights de 

novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 

2005). “A defendant may waive his right to appeal if that 

waiver is the result of a knowing and intelligent decision to 

forgo the right to appeal.” United States v. Amaya-Portillo, 

423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks 

omitted). To determine whether the waiver is knowing and 

intelligent, we look to “the totality of the circumstances, 

including the experience and conduct of the accused, as well as 
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the accused’s educational background and familiarity with the 

terms of the plea agreement.” United States v. General, 278 

F.3d 389, 400 (4th Cir. 2002) (internal quotation marks 

omitted). Generally, if the district court fully questions the 

defendant about the waiver during the Federal Rule of Criminal 

Procedure 11 plea colloquy, the waiver is valid and enforceable. 

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

will enforce a valid waiver so long as “the issue being appealed 

is within the scope of the waiver.” Blick, 408 F.3d at 168. 

In his plea agreement, McAllister agreed to “waive[] 

the right to appeal any sentence which is within the maximum 

provided in the statute of conviction or . . . the manner in 

which that sentence was determined on any ground whatever.” 

Neither counsel nor McAllister asserts any error in the plea 

colloquy or challenges the validity of McAllister’s appellate 

waiver. Our review of the record leads us to conclude that 

McAllister’s waiver was knowing and intelligent. 

Turning to the scope of the waiver, we conclude that 

the issue McAllister raises on appeal falls within the scope of 

the appellate waiver provision. Additionally, McAllister was 

sentenced to eighty-seven months’ imprisonment, within the 

forty-year maximum sentence authorized by § 841. Thus, 

McAllister’s claim on appeal is barred by the appellate waiver 
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provision, and we grant the Government’s motion to dismiss in 

part and dismiss this portion of the appeal.*

The waiver provision, however, only waived 

McAllister’s right to appeal his sentence. Although McAllister 

does not assert any errors related to his guilty plea or 

conviction, counsel correctly notes that McAllister’s appellate 

waiver does not preclude our review pursuant to Anders. In 

accordance with Anders, we have reviewed the entire record and 

have found no unwaived and potentially meritorious issues for 

review. We therefore deny the Government’s motion to dismiss in 

part and affirm McAllister’s conviction.

 

This court requires that counsel inform McAllister, in 

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

United States for further review. If McAllister requests that a 

petition be filed, but counsel believes that such a petition 

 * In any event, we would find that the district court did 

not abuse its discretion in denying McAllister’s motion for a 

continuance of the sentencing hearing. See United States v. 

Midgett, 488 F.3d 288, 297 (4th Cir. 2007) (stating standard of 

review). McAllister sought the continuance primarily to await 

pending legislation. See Fair Sentencing Act of 2010 (FSA), 

Pub. L. No. 111-220, 124 Stat. 2372. Although the FSA increased 

the amounts of crack cocaine that trigger statutory mandatory 

minimum sentences in § 841, the FSA did not expressly provide 

that those amendments apply retroactively. Thus, despite the 

enactment of the FSA, the district court at sentencing had to 

apply the penalties in effect in 2009 when McAllister committed 

the instant offense. See 1 U.S.C. § 109 (2006).
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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 McAllister. We dispense with oral 

argument because the facts and legal conclusions are adequately 

presented in the materials before the court and argument would 

not aid the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART