UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4763

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

STEPHEN BRENT HIMES,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern

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

Chief District Judge. (5:10-cr-00026-FL-1)

Submitted: February 22, 2011 Decided: March 17, 2011

Before KING, KEENAN, and WYNN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 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. Tobin Webb Lathan, OFFICE OF THE UNITED STATES 

ATTORNEY, 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Unpublished opinions are not binding precedent in this circuit.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:

Stephen Brent Himes pleaded guilty, pursuant to a 

written plea agreement, to armed bank robbery, in violation of 

18 U.S.C. § 2113(a), (d) (2006). He was sentenced to 

ninety-five months’ imprisonment. On appeal, Himes’ counsel has 

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 giving 

adequate consideration to the impending recency amendment to 

U.S. Sentencing Guidelines Manual

Pursuant to a plea agreement, a defendant may waive 

his appellate rights. United States v. Manigan, 592 F.3d 621, 

627 (4th Cir. 2010). A waiver will preclude appeal of a 

specific issue if the waiver is valid and the issue is within 

the scope of the waiver. United States v. Blick, 408 F.3d 162, 

168 (4th Cir. 2005). The question of whether a defendant 

validly waived his right to appeal is a question of law that 

this court reviews de novo. Manigan, 592 F.3d at 626. 

(“USSG”) § 4A1.1 (2009). 

Himes has not filed a pro se supplemental brief. The Government 

has moved to dismiss the appeal of Himes’ sentence based upon a 

waiver of appellate rights in his plea agreement.

An appellate waiver is valid if the defendant 

knowingly and intelligently agreed to waive the right to appeal. 

Id. at 627. To determine whether a waiver is knowing and 
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intelligent, this court examines the totality of the 

circumstances. Id. Generally, if the district court fully 

questions a defendant regarding the waiver of his right to 

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

both valid and enforceable. Id.; United States v. Johnson, 

410 F.3d 137, 151 (4th Cir. 2005). Here, the magistrate judge 

complied with the requirements of Fed. R. Crim. P. 11. The 

magistrate judge ensured that Himes had read the plea agreement, 

that counsel explained it to him, and that he understood the 

consequences of the waiver of appellate rights set forth in the 

agreement.

Accordingly, we grant the Government’s motion to 

dismiss Himes’ appeal of his sentence and dismiss the appeal in 

part. 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. We 

therefore affirm Himes’ conviction. 

This court requires that counsel inform Himes, in 

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

United States for further review. If Himes 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 Himes. We dispense with 
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oral argument because the facts and legal contentions are 

adequately presented in the material before the court and 

argument would not aid the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART