United States of America v. Pezzulo Scurlock

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4114
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEZZULO SCURLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:10-cr-00233-D-1)
Submitted: August 19, 2011 Decided: September 16, 2011
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Michael Gordon James, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pezzulo Scurlock pleaded guilty, pursuant to a plea
agreement, to one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006). The district court sentenced Scurlock to thirty-three
months in prison followed by three years of supervised release.
On appeal, Scurlock’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that he could find no meritorious issues for appeal, but
questions whether the district court procedurally erred by
failing to address one of Scurlock’s arguments for a shorter
sentence. Scurlock was notified of his right to file a pro se
supplemental brief but has not done so. The Government moved to
dismiss the appeal to the extent it is precluded by the appeal
waiver in Scurlock’s plea agreement.
We consider a defendant’s waiver of his right to
appeal de novo. United States v. Manigan, 592 F.3d 621, 626
(4th Cir. 2010). Where the United States seeks to enforce an
appeal waiver and there is no claim that the United States
breached its obligations under the plea agreement, we generally
will enforce the waiver if the record establishes that (1) the
defendant knowingly and intelligently agreed to waive the right
to appeal; and (2) the issue being appealed is within the scope

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of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
Our review of the record confirms that Scurlock
knowingly and intelligently waived his right to appeal his
sentence. In his plea agreement, Scurlock explicitly waived the
right to challenge his sentence on appeal, reserving only the
right to appeal a sentence in excess of the applicable
Sentencing Guidelines range. The district court conducted the
colloquy required by Rule 11, and Scurlock affirmed under oath
that he understood all the terms of his plea agreement as well
as the appeal waiver specifically. The issue raised in
Scurlock’s Anders brief falls squarely within the compass of the
waiver. Accordingly, we grant the Government’s motion to
dismiss the appeal as to Scurlock’s sentence.
The waiver provision did not, however, waive
Scurlock’s right to appeal his conviction. In accordance with
Anders, we have thoroughly examined the entire record for any
potentially meritorious issues outside the scope of Scurlock’s
appeal waiver. We have found no such issues. Therefore we
affirm Scurlock’s conviction and grant the Government’s motion
to dismiss in part as to Scurlock’s sentence.
This Court requires that counsel inform Scurlock, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Scurlock requests that a

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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 Scurlock. 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 IN PART;
DISMISSED IN PART

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