United States of America v. Dwayne Anthony Frazier

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4059
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWAYNE ANTHONY FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00149-BO-1)
Submitted: September 13, 2011 Decided: October 24, 2011
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dwayne Anthony Frazier pled guilty to one count of
manufacturing child pornography, in violation of 18 U.S.C.A.
§ 2251(a), (d) (West Supp. 2011), and was sentenced to 180
months’ imprisonment, $10,000 in restitution, and a life term of
supervised release. On appeal, Frazier’s attorney has filed a
brief pursuant to Anders v. California
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006).
, 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal, but
questioning whether the life term of supervised release is
substantively unreasonable. Frazier was informed of his right
to file a pro se supplemental brief but has not done so. The
Government has filed a motion to dismiss the appeal based on the
appellate waiver provision in Frazier’s plea agreement. We
grant the motion to dismiss in part, and deny in part.
United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo, and we will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is valid if the defendant’s agreement to the waiver was knowing
and intelligent. Id. at 169. To determine whether a waiver is
knowing and intelligent, we examine “the totality of the

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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. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks omitted). Generally, if a district court fully
questions a defendant regarding the waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, and the record
indicates that the defendant understood the significance of the
waiver and was not denied effective assistance of counsel, the
waiver is valid. United States v. Johnson
A review of the Rule 11 hearing transcript confirms
that Frazier knowingly and intelligently waived his right to
appeal. In his plea agreement, Frazier explicitly waived the
right to challenge his sentence on appeal, reserving only the
right to appeal a sentence imposed in excess of the established
Guidelines range, ineffective assistance of counsel, or
prosecutorial misconduct under limited circumstances. Frazier
confirmed at his Rule 11 hearing that he read and understood the
plea agreement. The district court conducted the colloquy
required under Rule 11, ensuring that Frazier understood the
waiver and the charges and potential penalties, and was
competent to enter the plea. We therefore conclude that Frazier
knowingly and intelligently waived the right to appeal his
, 410 F.3d 137, 151
(4th Cir. 2005).

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sentence. Because Frazier challenges only his sentence on
appeal, and Frazier’s appeal falls squarely within the scope of
the waiver provision, we grant the motion to dismiss the appeal
of Frazier’s sentence.
The waiver provision did not, however, waive Frazier’s
right to appeal his conviction. Defense counsel asserts no
errors related to Frazier’s guilty plea or conviction, but the
waiver provision does not preclude our Anders
In sum, the Government’s motion to dismiss is granted
in part and denied in part, Frazier’s appeal of his sentence is
dismissed, and his conviction is affirmed. This court requires
that counsel inform Frazier, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Frazier 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 Frazier. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
review of the
record. That review has disclosed no potentially meritorious
issues not covered by the waiver. Accordingly, we deny the
Government’s motion to dismiss as to Frazier’s conviction, and
we affirm the conviction.

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materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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