United States of America v. Anthony J. Marcantoni, a/k/a Mr. Purple, a/k/a The Italian

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5044
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY J. MARCANTONI, a/k/a Mr. Purple, a/k/a The Italian,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00777-RWT-15)
Submitted: April 10, 2014 Decided: April 25, 2014
Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robin M. Earnest, LAW OFFICE OF ROBIN EARNEST, Riverdale,
Maryland, for Appellant. Mara Zusman Greenberg, Deborah A.
Johnston, Assistant United States Attorneys, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anthony J. Marcantoni pleaded guilty to conspiracy to
distribute and possess with intent to distribute marijuana, in
violation of 21 U.S.C. § 846 (2012). The district court
sentenced Marcantoni to 121 months of imprisonment. Marcantoni
filed a timely notice of appeal. Five months later, Marcantoni
filed a motion pursuant to 18 U.S.C. § 3504 (2012), to discover
whether the Government had intercepted any communications
between Marcantoni’s counsel and counsel for his codefendants.
The district court denied Marcantoni’s motion and Marcantoni did
not file a notice of appeal of that order. On appeal,
Marcantoni argues that the district court erred in denying his
motion. The Government has moved to dismiss the appeal based on
the waiver of appellate rights contained in the plea agreement.
For the reasons that follow, we affirm the judgment of the
district court and deny as moot the motion to dismiss.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2012). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to

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appeal is a question of law that this court reviews de novo.
Id. at 168.
Here, the appellate waiver included any appeal of the
conviction and sentence pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291 (2012), except a sentence above the advisory
Guidelines range. While we conclude that Marcantoni knowingly
and intelligently agreed to waive his right to appeal,
Marcantoni has not challenged his conviction or sentence on
appeal. Rather, Marcantoni challenges only the district court’s
order denying his post-judgment motion pursuant to § 3504. As
Marcantoni failed to file a notice of appeal of the district
court’s order denying his motion, however, that order is not
before this court.
Accordingly, we affirm Marcantoni’s conviction and
sentence, and deny as moot the Government’s motion to dismiss
the appeal. 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

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