                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4788


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DOMINIC SINCLAIR ERVIN,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-01035-RBH-1)


Submitted:   April 18, 2011                 Decided:   April 27, 2011


Before GREGORY, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kathy Price Elmore, ORR ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant.    Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Dominic    Sinclair        Ervin    pled     guilty     pursuant       to    a

written    plea     agreement      to    using,   carrying,      and    possessing          a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A) (2006).                Pursuant to Fed. R. Civ. P.

11(c)(1)(C),       the   parties        stipulated    to    a   ten-year       sentence,

which Ervin received.              On appeal, counsel has filed a brief

pursuant      to    Anders    v.        California,      386    U.S.     738     (1967),

indicating that there are no meritorious issues for appeal, but

questioning        whether    Ervin’s       appellate       waiver      in     his   plea

agreement is enforceable and whether the district court fully

complied with Rule 11 in accepting Ervin’s guilty plea.                              Ervin

has   filed    a   pro   se   supplemental        brief.        The    Government         has

elected not to file a response.              We affirm.

              Counsel first argues Ervin’s appellate waiver in his

plea agreement is not enforceable.                    The Government, however,

has not filed a responsive brief invoking the appeal waiver or

moved to dismiss this appeal.                Accordingly, the Government has

waived reliance on the waiver, and the court will perform its

required Anders review.             See United States v. Poindexter, 492

F.3d 263, 271 (4th Cir. 2007) (noting that, if the Government

does nothing in response to an Anders brief in a case where the

appellant has waived his right to appeal, the court will perform

its required Anders review); see also United States v. Metzger,

                                            2
3   F.3d     756,     757-58      (4th      Cir.       1993)     (holding        that    the

Government’s failure to assert an appeal waiver as a bar to the

appeal constitutes a waiver of reliance on the appeal waiver).

             Where the defendant did not move in the district court

to withdraw his guilty plea, any error in the Rule 11 hearing is

reviewed for plain error.              United States v. Martinez, 277 F.3d

517, 525-26 (4th Cir. 2002).              “To establish plain error, [Ervin]

must show that an error occurred, that the error was plain, and

that   the    error     affected       his         substantial       rights.”        United

States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (citation

omitted).     Even if Ervin satisfies these requirements, the court

retains discretion to correct the error, which it should not

exercise     unless    the     error      seriously          affects       the    fairness,

integrity or public reputation of judicial proceedings.                                   Id.

(internal     quotation      marks       and       citation    omitted).           We    have

reviewed the transcript of the Rule 11 hearing, and we conclude

that   the   district       court    complied         with     the    Rule’s      mandates.

Moreover,    the     district       court      ensured       that    Ervin’s      plea   was

knowing, voluntary, and supported by an adequate factual basis.

             In accordance with Anders, we have reviewed the entire

record in this case and Ervin’s pro se supplemental brief and

conclude     there    are    no     meritorious         issues       for    appeal.       We

therefore affirm the judgment of the district court.                             We further

deny Ervin’s motion to appoint counsel as moot; grant in part

                                               3
his motion to seal with respect to the presentence report; and

deny in part his motion to seal with respect to the remaining

part of the record and the Anders brief.                     This court requires

that counsel inform Ervin, in writing, of the right to petition

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

Ervin 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

Ervin.      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




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