UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4888

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT LEE MILLER, a/k/a Bobby,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:09-cr-00032-FPS-JES-3)

Submitted: April 22, 2010 Decided: May 20, 2010

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West 

Virginia, for Appellant. John C. Parr, Assistant United States 

Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Lee Miller appeals his conviction and sentence 

of twenty-four months of imprisonment imposed after he pled 

guilty, pursuant to a plea agreement, to one count of aiding and 

abetting the distribution of cocaine base within 1000 feet of a 

protected location, in violation of 21 U.S.C. §§ 841(a)(1), 860 

(2006). On appeal, counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), in which he states there are no 

meritorious issues for appeal, but questions whether the 

district court erred in accepting Miller’s guilty plea and 

concluding that his plea was knowing, intelligent, and 

voluntary. Miller was advised of his right to file a pro se 

supplemental brief, but has not filed a brief. The Government 

has moved to dismiss Miller’s appeal based upon a waiver of 

appellate rights in his plea agreement.

This court reviews the validity of a waiver de novo, 

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

and will uphold a waiver of appellate rights if the waiver is 

valid and the issue being appealed is covered by the waiver. 

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A 

waiver is valid if the defendant’s agreement to the waiver was 

knowing and voluntary. United States v. Marin, 961 F.2d 493, 

496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165, 

167 (4th Cir. 1991).
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To determine whether a waiver is knowing and 

intelligent, this court examines “the totality of the 

circumstances, including the experience and conduct of the 

accused, as well as 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 a district court fully 

questions a defendant regarding the waiver of appellate rights 

during the Fed. R. Crim. P. 11 colloquy, the waiver is valid. 

Wessells, 936 F.2d at 167-68. In this case, Miller does not 

assert that his waiver was not voluntary, and our review of the 

record leads us to conclude that Miller’s waiver of his right to 

appeal was knowing and voluntary and should be enforced to 

preclude any review of potential sentencing error. Miller’s 

waiver does not, however, include a waiver of his right to 

appeal his conviction, which counsel raises by questioning 

whether the district court complied with Fed. R. Crim. P. 11 and 

properly found Miller’s plea knowing, intelligent, and 

voluntary.

Because Miller did not move in the district court to 

withdraw his guilty plea, any error in the Rule 11 hearing is 

reviewed for plain error. United States v. Martinez, 277 F.3d 

517, 525 (4th Cir. 2002). The record reveals that the district 

court substantially complied with the requirements of Rule 11 in 
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accepting Miller’s guilty plea, and ensured that Miller’s plea 

was knowing and voluntary and supported by a sufficient factual 

basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 

(4th Cir. 1991).

Accordingly, we deny the Government’s motion to 

dismiss in part and affirm Miller’s conviction. We grant the 

motion to dismiss with regard to any potential sentencing error 

that may be revealed by our review pursuant to Anders. In 

accordance with Anders, we have reviewed the entire record in 

this case and have found no meritorious issues for appeal that 

are not encompassed by the appeal waiver. This court requires 

that counsel inform Miller, in writing, of the right to petition 

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

Miller 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 thereof was served on 

Miller. 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