                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4713


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

GARY C. GERARD,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:17-cr-00102-MSD-DEM-1)


Submitted: May 17, 2018                                           Decided: May 30, 2018


Before MOTZ and DUNCAN, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed in part and dismissed in part by unpublished per curiam opinion.


James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. Joseph
Kosky, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Gary C. Gerard pled guilty, pursuant to a written plea agreement, to one count of

access with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)

(2012), and was sentenced to 66 months’ imprisonment. On appeal, Gerard’s counsel has

filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious issues for appeal, but questioning whether Gerard’s guilty plea

was knowingly and voluntarily entered and whether his sentence is reasonable. Although

advised of his right to file a supplemental pro se brief, Gerard has not done so. The

Government seeks to dismiss the appeal based on the appellate waiver provision in the

plea agreement.

      “A criminal defendant may waive the right to appeal if that waiver is knowing and

voluntary.” United States v. Tate, 845 F.3d 571, 574 n.1 (4th Cir. 2017); United States v.

Copeland, 707 F.3d 522, 528 (4th Cir. 2013). To determine whether the waiver is

knowing and voluntary, this court often looks to the sufficiency of the plea colloquy and

whether the district court questioned the defendant about the appeal waiver, but

ultimately the determination turns on “the totality of the circumstances.” Copeland, 707

F.3d at 528 (internal quotation marks omitted).       In evaluating the totality of the

circumstances, courts consider “the particular facts and circumstances surrounding [the]

case, including the background, experience, and conduct of the accused.” United States

v. Blick, 408 F.3d 162, 169 (4th Cir. 2005) (internal quotation marks omitted). This court

“will enforce the waiver if it is valid and the issue appealed is within the scope of the

waiver.” Copeland, 707 F.3d at 528 (internal quotation marks omitted).

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       We have reviewed the transcript of the Fed. R. Crim. P. 11 hearing and find that

Gerard knowingly and intelligently waived the right to appeal both his conviction and

sentence. The district court specifically questioned Gerard about the written appellate

waiver and confirmed that he understood he was waiving his right to appeal by entering

the agreement. The terms of the waiver were “clear and unmistakable.” See Blick, 408

F.3d at 169. Gerard does not contend that the district court failed to question him

concerning the appellate waiver or that he did not understand the full significance of the

waiver. Based on the totality of the circumstances, we find that Gerard’s appeal waiver

was both knowing and intelligent and, therefore, enforceable as to issues within its scope.

       A valid waiver does not bar matters outside the scope of the waiver or prevent this

court from correcting a miscarriage of justice. United States v. Adams, 814 F.3d 178, 182

(4th Cir. 2016). Nor does Gerard’s appeal waiver bar his constitutional challenge to the

knowing and voluntary nature of his guilty plea. See United States v. Attar, 38 F.3d 727,

732-33 & n.2 (4th Cir. 1994). We have reviewed the record and conclude that the district

court fully complied with the requirements of Rule 11 in ensuring that Gerard’s guilty

plea was knowing, voluntary, and supported by a sufficient factual basis. Therefore, we

find that his guilty plea was valid and affirm Gerard’s conviction.

       Counsel also questions whether Gerard’s sentence was reasonable.           Because

Gerard’s sentence did not exceed the statutory maximum, this claim falls within the scope

of the waiver. Accordingly, we grant, in part, the Government’s motion and dismiss the

appeal as to Gerard’s sentence.



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       In accordance with Anders, we have reviewed the entire record in this case and

have found no other meritorious grounds for appeal. We therefore dismiss the portion of

the appeal challenging the reasonableness of Gerard’s sentence based on his valid

appellate waiver and affirm the remainder of the district court’s judgment. This court

requires that counsel inform Gerard, in writing, of the right to petition the Supreme Court

of the United States for further review. If Gerard 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 Gerard.

       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.

                                                                   AFFIRMED IN PART;
                                                                   DISMISSED IN PART




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