                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-5112


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

COREY EARL ARTIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00014-H-1)


Submitted:   November 30, 2012             Decided:   December 13, 2012


Before GREGORY, SHEDD, and WYNN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Corey     Earl     Artis    pled       guilty     pursuant         to    a    plea

agreement to one count of being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),

924 (2006).       He was sentenced to fifty-two months’ imprisonment,

and   has   noted     this    appeal.        Artis’       attorney      filed       a    brief

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

that there are no meritorious issues for appeal, but questioning

whether the district court erred in denying Artis’ motion to

dismiss the indictment.             Artis was advised of his right to file

a pro se supplemental brief but has not done so.                                    Upon our

initial review of the appeal, we directed supplemental briefing

regarding whether either of Artis’ North Carolina convictions

for eluding arrest with a motor vehicle qualifies as a crime of

violence          under       U.S.      Sentencing               Guidelines             Manual

§ 2K2.1(a)(4)(A)          (2011).      The       Government       has    now     moved      to

dismiss     the     appeal,     asserting         that     Artis’       plea     agreement

contained a waiver of the right to appeal his sentence.                                  Artis

opposes the motion.            We grant the motion in part, affirm in

part, and dismiss in part.

            A     defendant    may    waive      the     right    to    appeal      if    that

waiver is knowing and intelligent.                     United States v. Manigan,

592 F.3d 621, 627 (4th Cir. 2010).                  Whether a defendant validly



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waived his appeal rights is a question of law that we review de

novo.   Id. at 626.     The validity of a waiver is assessed under

the   totality   of   the   circumstances,     id.    at   627,   but   if   the

district court questions a defendant regarding the waiver of his

right to appeal during the Fed. R. Crim. P. 11 colloquy, the

waiver is generally found to be valid and enforceable.                  United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United

States v. General, 278 F.3d 389, 400-01 (4th Cir. 2002).

           Our review of the record leads us to conclude that

Artis knowingly and voluntarily waived the right to appeal a

sentence, like the one imposed here, that is within the scope of

the Guidelines range, and that the supplementally briefed issue

is within the scope of that waiver.           We therefore grant in part

the Government’s motion to dismiss, and dismiss the appeal of

Artis’ sentence.

           The waiver does not preclude review of whether the

district court erred in denying Artis’ pro se motion to dismiss

the   indictment   charging    him   as   a   felon   in   possession    of   a

firearm.    In reviewing the denial of a motion to dismiss an

indictment, we review the district court’s factual findings for

clear error and its legal conclusions de novo.              United States v.

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).




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           In his pro se motion, Artis relied on our decision in

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc)

(holding that consideration of hypothetical aggravating factors

and criminal history is inappropriate when determining whether

prior offense constitutes felony).             A review of Artis’ criminal

history reveals he was convicted of receiving stolen property of

a value greater than $1000 in Delaware, in violation of Del.

Code Ann. tit. 11      § 851.3, a Class G felony punishable by up to

two years’ imprisonment.           Del. Code Ann. tit. 11 § 4205(b)(7).

In view of this conviction, Artis is not entitled to relief

under Simmons, and we find that the district court did not err

in denying his pro se motion to dismiss the indictment.

           The waiver provision also does not preclude our review

of Artis’ conviction pursuant to Anders.               We have reviewed the

entire record and have found no issues that are meritorious and

outside the scope of the waiver.           We therefore deny in part the

Government’s motion to dismiss and affirm Artis’ conviction.

           This   court   requires      that    counsel   inform   Artis,     in

writing,   of   his   right   to    petition    the   Supreme   Court   of   the

United States for further review.               If Artis 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



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state that a copy thereof was served on Artis.              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.

                                                           DISMISSED IN PART;
                                                             AFFIRMED IN PART




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