United States of America v. California, 386 U.S. 738 1967 . Although counsel states there are no meritorious…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4772
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN JOSEPH NOSSE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-98)
Submitted: February 19, 2004 Decided: April 7, 2004
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Megan J. Schueler,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Stephanie L.
Haines, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
John Joseph Nosse appeals his sentence following his
guilty plea to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2000) and 18 U.S.C. § 924(a)(2)
(2000). Nosse’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Although counsel states
there are no meritorious issues for appeal, she raises the issue of
whether the district court abused its discretion by sentencing
Nosse to 210 months’ imprisonment and imposing a $5000 fine.
Although informed of his right to do so, Nosse did not file a pro
se supplemental brief. In accordance with Anders, we have
considered the briefs and examined the entire record for
meritorious issues. Finding no error, we affirm.
It is well-settled that a sentence within a properly
calculated sentencing guidelines range is not appealable. United
States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994) (holding
§ 3742(a) precludes a criminal defendant from seeking review of
court’s sentence anywhere within properly calculated sentencing
range); 18 U.S.C. § 3742(a) (2000). Because Nosse’s 210-month
sentence falls within the properly calculated guidelines range of
188 to 235 months’ imprisonment, it is not reviewable on appeal.
Moreover, Nosse waived his right to appeal any fine
imposed not in excess of the appropriate guidelines range. A
defendant may, in a valid plea agreement, waive the right to appeal

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under § 3742(a), as long as it is the result of a knowing and
intelligent decision to forgo the right to appeal. United State v.
Wessells, 936 F.2d 165 (4th Cir. 1991). Because Nosse’s fine was
not in excess of the $15,000 to $150,000 range established by the
guidelines, and because his waiver was knowing and intelligent, he
may not appeal the imposition of the fine to this court.
In accordance with Anders, we have reviewed the entire
record in this case, including the Fed. R. Crim. P. 11 and
sentencing transcripts, and have found no meritorious issues for
appeal. We therefore affirm Nosse’s sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court to withdraw from representation at that time.
Counsel’s motion must state that a copy thereof was served on
Nosse.
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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