UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4201

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WINDELL NORWOOD HICKS, a/k/a Fly Hicks,

Defendant – Appellant,

v.

DEBBIE LANETT JOHNSON; NAOMI JOHNSON,

Claimants.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (7:09-cr-00009-FL-1)

Submitted: June 29, 2011 Decided: July 13, 2011

Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam 

opinion.

Robert J. McAfee, MCAFEE LAW, P.A., New Bern, 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Unpublished opinions are not binding precedent in this circuit.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:

Windell Norwood Hicks pled guilty, pursuant to a 

written plea agreement, to conspiracy to possess with intent to 

distribute, and distribution of, more than fifty grams of crack 

cocaine, 21 U.S.C. § 846 (2006), and was sentenced to 160 months 

of imprisonment, within his advisory Sentencing Guidelines 

range. On appeal, Hicks’ attorney has 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 erred by overruling Hicks’ objection to the 

two-level enhancement he received for possession of a firearm. 

Hicks has filed a supplemental pro se brief in which he 

challenges the calculation of his criminal history score. The 

United States seeks to dismiss the appeal based on the appellate 

waiver provision in the plea agreement.

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

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

Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the 

validity of an appellate waiver de novo, and we 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). An appellate waiver 

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

and intelligent. Id. at 169. To determine whether a waiver is 
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knowing and intelligent, we examine “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 and citation omitted). Generally, if a district 

court fully questions a defendant regarding the waiver of 

appellate rights during the Fed. R. Crim. P. 11 colloquy, and 

the record indicates that the defendant understood the full 

significance of the waiver and was not denied effective 

assistance of counsel, the waiver is valid. United States v. 

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

A review of the Rule 11 hearing transcript confirms 

that Hicks knowingly and intelligently waived his right to 

appeal. In his plea agreement, Hicks explicitly waived the 

right to challenge his sentence on appeal, reserving only the 

right to appeal based upon grounds of ineffective assistance of 

counsel, prosecutorial misconduct, or a sentence in excess of 

the applicable Sentencing Guidelines range. Hicks confirmed at 

his Rule 11 hearing that he read and understood the plea 

agreement. The district court conducted the colloquy required 

under Rule 11, ensuring that Hicks understood the charges and 

potential penalties and that Hicks was competent to enter the 

plea. We therefore conclude that Hicks knowingly and 
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intelligently pled guilty and waived the right to appeal his 

sentence. The issues Hicks seeks to raise on appeal fall 

squarely within the scope of the waiver provision; accordingly, 

we grant the Government’s motion to dismiss the appeal as to 

Hicks’ sentence.

The waiver provision did not, however, waive Hicks’ 

right to appeal his conviction. In accordance with Anders, we 

have thoroughly examined the entire record for any potentially 

meritorious issues not covered by the waiver and have found 

none. Therefore we affirm Hicks’ conviction and grant the 

Government’s motion to dismiss in part as to Hicks’ sentence. 

This court requires that counsel inform Hicks, in writing, of 

his right to petition the Supreme Court of the United States for 

further review. If Hicks 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 Hicks. 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