UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4064

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DONALD BARNARD NEAL, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern

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

Senior District Judge. (5:10-cr-00192-H-1)

Submitted: September 19, 2011 Decided: September 27, 2011

Before MOTZ, WYNN, and DIAZ, 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Dismissed in part; affirmed in part by unpublished per curiam 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Donald Barnard Neal, Jr., pled guilty, pursuant to a 

written plea agreement, to possession of a firearm by a 

convicted felon, 18 U.S.C. § 922(g) (2006). The district court 

sentenced Neal to 120 months in prison. Neal now appeals. His 

attorney has filed a brief in accordance with Anders v. 

California, 386 U.S. 738 (1967), raising one sentencing issue. 

Neal was advised of his right to file a pro se supplemental 

brief, but has not filed such a brief. The Government moves to 

dismiss the appeal of the sentence on the basis of a waiver-ofappellate-rights provision in Neal’s plea agreement. We dismiss 

in part and affirm in part. 

A defendant may waive the right to appeal if the 

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 plea colloquy performed in accordance 

with Fed. R. Crim. P. 11, the waiver is both valid and 

enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th 

Cir. 2005). The question of whether a 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). 

After reviewing the record, we conclude that Neal 

knowingly and voluntarily waived the right to appeal his 
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sentence, with the exception of a claim that his sentence was 

above the advisory Guidelines range. We note that the waiver 

provision was set forth in a separate paragraph of the plea 

agreement, which Neal signed. Further, he was fully questioned 

at the properly conducted Rule 11 hearing about the waiver. 

Accordingly, the waiver is valid. Neal’s claim on appeal that 

his base offense level was improperly calculated falls within 

the scope of the waiver.*

With respect to Neal’s conviction, our review of the 

transcript of the plea colloquy convinces us that the court 

complied with the mandates of Fed. R. Crim. P. 11 in accepting 

Jones’ guilty plea. The court advised and questioned Neal as 

required by the Rule and determined that the plea was voluntary, 

knowing, and supported by an independent factual basis. See

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 

1991). We therefore affirm the conviction.

 We accordingly grant the Government’s 

motion to dismiss Neal’s appeal of his sentence. 

In accordance with Anders, we have reviewed the entire 

record for meritorious issues and have found none. We affirm 

 * Neal’s total offense level was 29, and his criminal 

history category was V, resulting in a Guidelines range of 140-

175 months. However, Neal was statutorily subject to a maximum 

term of 120 months, see 18 U.S.C. § 924(a)(2) (2006), and his 

Guidelines range was 120 months. See U.S. Sentencing Guidelines 

Manual § 5G1.1(a) (2010). 
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Neal’s conviction and dismiss his appeal of his sentence. This 

court requires that counsel inform his 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 for leave to 

withdraw from representation. Counsel’s motion must state that 

a copy 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. 

DISMISSED IN PART;

AFFIRMED IN PART