United States of America v. Clinton Powell, Jr.

Clinton Cornelius Powell, Jr., pled guilty, pursuant to a plea agreement, to being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possessing a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i). The district court sentenced Powell to an aggregate term of 156 months'

imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious grounds for appeal but asking us to

review three issues: (1) the validity of the appeal waiver; (2) assuming the waiver's

validity, whether there are viable issues that fall outside the scope of the waiver, including

as related to the sufficiency of both the indictment and the factual basis for the plea; and

(3) the reasonableness of Powell's sentence, including the computation of his Sentencing

Guidelines range. Although advised of his right to file a pro se supplemental brief, Powell

has not done so. The Government has moved to dismiss the appeal pursuant to the appellate

waiver in Powell's plea agreement. We dismiss in part and affirm in part.

We review the validity of an appellate waiver de novo and "will enforce the waiver

if it is valid and the issue appealed is within the scope of the waiver.” United States v.

Adams, 814 F.3d 178, 182 (4th Cir. 2016). A waiver is valid if it is "knowing and

voluntary.” Id. To determine whether a waiver is knowing and voluntary, "we consider

the totality of the circumstances, including the experience and conduct of the defendant,

his educational background, and his knowledge of the plea agreement and its terms.”

United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal quotation marks

omitted). As a general rule, "if a district court questions a defendant regarding the waiver

3

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, the waiver is valid.” Id.

(internal quotation marks omitted).

Our review of the record confirms that Powell knowingly and voluntarily waived

his right to appeal his convictions and sentence, with limited exceptions that are not

applicable here. We therefore conclude that the waiver is valid and enforceable. We

further conclude that Powell's challenges to the imposed sentence fall within the scope of

the waiver, as does his nonjurisdictional argument related to the alleged insufficiency of

the indictment. See accord United States v. Jackson-Bey, 964 F.3d 730, 732 (8th Cir. 2020)

(ruling that constitutional challenge to indictment fell within scope of appeal waiver). And

while the valid appellate waiver does not preclude us from reviewing the sufficiency of the

proffered factual basis for the guilty plea, see McCoy, 895 F.3d at 364, the record reveals

no insufficiency in the prosecutor's recitation of the facts relevant to the two counts of

conviction. Finally, in accordance with Anders, we have reviewed the entire record in this

case and have found no meritorious grounds for appeal beyond the scope of Powell's valid

appellate waiver.

Accordingly, we grant the Government’s motion in part and dismiss the appeal as

to any issues within the scope of the waiver. We otherwise affirm the criminal judgment.

This court requires that counsel inform Powell, in writing, of the right to petition the

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

4

that a copy thereof was served on Powell. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

DISMISSED IN PART,

AFFIRMED IN PART