UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4850

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTHONY MINCEY,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:08-cr-00210-RJC-1)

Submitted: January 31, 2011 Decided: February 16, 2011

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North 

Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Richard Lee Edwards, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a written plea agreement, Anthony Mincey 

pled guilty to two counts of aggravated identity theft, in 

violation of 18 U.S.C. § 1028A(a)(1) (2006) (Counts 2 and 4), 

and bank fraud, in violation of 18 U.S.C. § 1344 (2006) (Count 

3). The district court sentenced Mincey to an aggregate term of

sixty months of imprisonment, thirty-six months on Count Three 

to run consecutive to concurrent sentences of twenty-four months 

on each of Counts Two and Four. This appeal followed. 

On appeal, Mincey’s counsel filed a brief pursuant to 

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

are no meritorious grounds for appeal, but questioning whether 

the district court abused its discretion by imposing a sentence 

within an admittedly correct Guidelines range. Mincey did not 

file a pro se supplemental brief, although informed of his right 

to do so. This court sought supplemental briefing from the 

parties on a sentencing issue. In its briefs, the Government 

now asserts that based on the appeal waiver in Mincey’s plea 

agreement, this court should dismiss the appeal.

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). To determine whether a 

waiver is knowing and intelligent, this court examines “the 

totality of the circumstances, including the experience and 
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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 the district court fully questions a 

defendant regarding the waiver of his right to appeal during the 

Rule 11 colloquy, the waiver is knowing and voluntary, and thus

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

Cir. 2005). 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). This court 

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

is within the scope of the waiver.” Id.

Mincey’s plea agreement contained a broad waiver of 

his right to challenge his conviction and sentence on appeal, 

except for claims of prosecutorial misconduct or ineffective 

assistance of counsel. On appeal, Mincey does not challenge the 

voluntariness of his waiver, nor does the record support such a

challenge. At the Rule 11 hearing, the Government specifically 

highlighted the appeal waiver in its summary of the plea 

agreement, and the magistrate judge verified that Mincey was 

aware of the waiver. Mincey, then thirty-seven with a twelfthgrade education, persisted in his desire to plead guilty. 

Accordingly, because Mincey knowingly and voluntarily entered 
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into the waiver and the Government invoked its enforcement, we 

dismiss Mincey’s appeal as to the claims raised in the Anders

brief and supplemental brief, which are clearly within the 

waiver’s scope.

In accordance with the requirements of Anders, we have 

examined the entire record and have found no unwaived and 

meritorious issues. Therefore we affirm the district court’s 

judgment in part. This court requires that counsel inform 

Mincey in writing of his right to petition the Supreme Court of 

the United States for further review. If Mincey requests that a 

petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move this court for leave 

to withdraw from representation. Counsel’s motion must state 

that a copy thereof was served on Mincey. 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