United States v. Kevin Moses, 4th Cir. (2013)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 13-4156
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
KEVIN EDWARD MOSES, a/k/a Fats,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.
Gina M. Groh,
District Judge. (3:11-cr-00047-GMG-DJJ-1)
Submitted:
September 23, 2013
Decided:
October 3, 2013
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam

opinion.
Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,

for Appellant.
William J. Ihlenfeld, II, United States
Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Moses pled guilty, pursuant to a written plea
agreement,
to
aiding
and
abetting
the
distribution
of
crack
cocaine within 1000 feet of a protected location (an elementary

school) and was sentenced to a within-Guidelines sentence of 262
months imprisonment.
Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether

Moses plea was knowingly and voluntarily entered and whether
his sentence is reasonable.
Moses filed a pro se supplemental
brief raising additional sentencing issues.
In addition, the
Government has filed a motion to dismiss the appeal based on the

waiver in the plea agreement.
For the reasons that follow, we
affirm the conviction and dismiss Moses appeal of his sentence.

Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. 3742 (2006).
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
United
A waiver
will preclude appeal of a specific issue if the waiver is valid

and the issue is within the scope of the waiver.
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
United States
The question of
whether a defendant validly waived his right to appeal is a

question of law that this court reviews de novo. Id.
The
validity of an appeal waiver depends on whether the defendant

knowingly
appeal.
and
intelligently
agreed
to
Id. at 169 (citation omitted).

2
waive
the
right
to
To determine whether a
waiver is knowing and intelligent, we examine the totality of

the circumstances, including the experience and conduct of the
accused, as well as the accuseds 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
the
district court fully questions a defendant regarding the waiver

of his right to appeal during the Rule 11 colloquy, the waiver
is both valid and enforceable.
United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005); United States v. Wessells, 936
F.2d 165, 167-68 (4th Cir. 1991).
the Fed. R. Crim. P. 11
In addition, the purpose of
colloquy is to ensure that the plea of
guilty is entered into knowingly and voluntarily.

States v. Vonn, 535 U.S. 55, 58 (2002).
See United
Accordingly, prior to
accepting a guilty plea, a trial court, through colloquy with

the defendant, must inform the defendant of, and determine that
he understands, the nature of the charges to which the plea is
offered,
any
mandatory
minimum
penalty,
the
maximum
possible
penalty he faces, and the various rights he is relinquishing by

pleading guilty.
Fed. R. Crim. P. 11(b).
The court also must
determine whether there is a factual basis for the plea.

United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).
Id.;
We have thoroughly reviewed the record and conclude

that the district court fully complied with the requirements of
Rule 11.
We further conclude that Moses guilty plea and waiver
of his appellate rights was knowing, intelligent, and voluntary.

The
appellate
sentence
included
imposed,
except
range.
Here,
Guidelines
within
waiver
the
advisory
Moses
right
sentence
the
district
Guidelines
range
to
above
court
and,
appeal
the
any
advisory
sentenced
therefore,
Moses
he
has
waived appellate review of his sentence.

We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal.
Accordingly, we affirm the conviction, grant the
Governments
motion
to
appeal of his sentence.
dismiss
in
part,
and
dismiss
Moses
This court requires that counsel inform
Moses, in writing, of the right to petition the Supreme Court of

the United States for further review.
If Moses 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.
Counsels motion must
state that a copy thereof was served on Moses.
We dispense with
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
legal
before
contentions
this
court
are
and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 23, 2013

Before NIEMEYER, KING, and THACKER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam

Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,

Unpublished opinions are not binding precedent in this circuit.

cocaine within 1000 feet of a protected location (an elementary

Counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), questioning whether

Moses filed a pro se supplemental

brief raising additional sentencing issues.

Government has filed a motion to dismiss the appeal based on the

For the reasons that follow, we

affirm the conviction and dismiss Moses appeal of his sentence.

will preclude appeal of a specific issue if the waiver is valid

whether a defendant validly waived his right to appeal is a

validity of an appeal waiver depends on whether the defendant

Id. at 169 (citation omitted).

waiver is knowing and intelligent, we examine the totality of

district court fully questions a defendant regarding the waiver

United States v. Johnson, 410

In addition, the purpose of

colloquy is to ensure that the plea of

guilty is entered into knowingly and voluntarily.

accepting a guilty plea, a trial court, through colloquy with

penalty he faces, and the various rights he is relinquishing by

Fed. R. Crim. P. 11(b).

The court also must

determine whether there is a factual basis for the plea.

We have thoroughly reviewed the record and conclude

We further conclude that Moses guilty plea and waiver

of his appellate rights was knowing, intelligent, and voluntary.

waived appellate review of his sentence.

Accordingly, we affirm the conviction, grant the

appeal of his sentence.

This court requires that counsel inform

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

If Moses requests that a

petition be filed, but counsel believes that such a petition

Counsels motion must

state that a copy thereof was served on Moses.

argument would not aid the decisional process.

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