                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4391


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CARLTON CALVIN WILSON, a/k/a CC,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:14-cr-00254-RJC-DSC-1)


Submitted: April 13, 2018                                         Decided: April 20, 2018
                               Amended: August 9, 2018


Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, PA, Florence, South Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Carlton Calvin Wilson appeals the criminal judgment resulting from his guilty

plea, pursuant to a plea agreement, to three counts of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012). Wilson’s attorney filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no

meritorious issues for appeal, but questioning whether the plea was voluntarily entered

and whether the district court erred in designating Wilson an armed career criminal.

Wilson filed a pro se supplemental brief and an amendment thereto, raising the same

issues as well as a challenge to the constitutionality of the Armed Career Criminal Act,

18 U.S.C. § 924(e) (ACCA). Upon our initial review of the appeal, we directed the

parties to file merits briefs addressing the propriety of the district court’s reasons for the

selected sentence. The Government now moves to dismiss, asserting that the appeal of

Wilson’s sentence is precluded by the appellate waiver provision in Wilson’s plea

agreement. We grant the motion and dismiss this appeal as to Wilson’s sentence, but

affirm as to the remainder of the judgment.

       We review de novo the validity of an appeal waiver. United States v. Copeland,

707 F.3d 522, 528 (4th Cir. 2013). Where the Government seeks to enforce an appeal

waiver and did not breach its obligations under the plea agreement, this court will enforce

the waiver if the record establishes (1) the defendant knowingly and intelligently waived

his right to appeal, and (2) the issues raised on appeal fall within the scope of the waiver.

Id.; United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).



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          “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 accused’s educational background and familiarity with the terms of the plea

agreement.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal

quotation marks omitted).        Other factors to be considered are whether the waiver

language in the plea agreement was “unambiguous” and “plainly embodied” and whether

the district court fully questioned the defendant during the Fed. R. Crim. P. 11 colloquy

regarding the waiver of his right to appeal. United States v. General, 278 F.3d 389, 400

(4th Cir. 2002). “Generally, if a district court questions a defendant regarding the waiver

of appellate rights during the Rule 11 colloquy and the record indicates that the defendant

understood the full significance of the waiver, the waiver is valid.” Thornsbury, 670 F.3d

at 537.

          Upon review of the record, we conclude that Wilson knowingly and voluntarily

waived the right to appeal his sentence. Moreover, the sentencing issues in this appeal,

which include the ones asserted by Wilson and the one previously identified by this court,

fall within the scope of the waiver. We therefore grant the Government’s motion to

dismiss this appeal as to Wilson’s sentence.

          In the Anders brief, counsel also questions whether the magistrate judge 1 complied

with the requirements of Rule 11 when accepting Wilson’s guilty plea, but points to no


          1
        The magistrate judge advised Wilson of his right to have a district judge conduct
the Rule 11 hearing, but Wilson consented to proceeding before the magistrate judge.


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specific omission. The waiver provision, as asserted by the Government in the motion to

dismiss, does not preclude our direct review of Wilson’s convictions. Because Wilson

did not seek to withdraw his guilty plea, this court reviews the adequacy of the Rule 11

hearing for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016). To

establish plain error, an appellant must show: (1) error; (2) that was plain; and (3) that

affected his substantial rights. United States v. Sanya, 774 F.3d 812, 816 (4th Cir. 2014).

       Our review of the plea hearing transcript confirms that the magistrate judge

substantially complied with the requirements of Rule 11 in accepting Wilson’s plea. Any

omissions were minor and did not affect Wilson’s substantial rights. The transcript

further confirms that Wilson’s guilty plea was knowing, voluntary, and supported by a

sufficient factual basis. We thus conclude that Wilson’s guilty plea is valid. Finally, we

find no merit in the issues asserted in Wilson’s pro se supplemental briefs that relate to

the propriety of his convictions, 2 and we observe that our Anders review of the record did

not reveal any potentially meritorious issues that fall outside the scope of the appeal

waiver. We therefore affirm the criminal judgment as to Wilson’s convictions.

       This court requires that counsel inform Wilson, in writing, of his right to petition

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

       2
         Specifically, Wilson asserts that Congress exceeded the bounds of its authority
under the Commerce Clause in enacting the ACCA. This contention is foreclosed by
established circuit precedent. See United States v. Presley, 52 F.3d 64 (4th Cir. 1995).


                                             4
motion must state that a copy thereof was served on Wilson. 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




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