United States of America v. Marvin Rashad Thompson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4639

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARVIN RASHAD THOMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:18-cr-00113-FL-1)

Submitted: May 26, 2020 Decided: June 5, 2020

Before MOTZ, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Marvin Rashad Thompson pled guilty, pursuant to a plea agreement, to access
device fraud, in violation of 18 U.S.C. § 1029(a)(1) (2018), and the district court sentenced
him to 37 months’ imprisonment, the top of his advisory Sentencing Guidelines range. On
appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal but questioning the substantive
reasonableness of Thompson’s sentence. Thompson was informed of his right to file a pro
se supplemental brief, but he has not done so. The Government moves to dismiss the appeal
pursuant to the appellate waiver in Thompson’s plea agreement. We affirm in part and
dismiss in part.
We review the validity of an appellate waiver de novo and “will enforce the waiver
if it is valid and the issue appealed is within the scope of the waiver.” United States v.
Adams, 814 F.3d 178, 182 (4th Cir. 2016). A waiver is valid if it is “knowing and
voluntary.” Id. To determine whether a waiver is knowing and voluntary, “we consider
the totality of the circumstances, including the experience and conduct of the defendant,
his educational background, and his knowledge of the plea agreement and its terms.”
United States v. McCoy, 895 F.3d 358, 362 (4th Cir.) (internal quotation marks omitted),
cert. denied, 139 S. Ct. 494 (2018). Generally, “if a district court 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 full significance of the waiver, the
waiver is valid.” Id. (internal quotation marks omitted).

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Our review of the record confirms that Thompson knowingly and voluntarily
waived his right to appeal, with limited exceptions not applicable here. We therefore
conclude that the waiver is valid and enforceable and that the issue counsel raises falls
squarely within the scope of the waiver.
In accordance with Anders, we have reviewed the entire record in this case and have
found no potentially meritorious issues outside the scope of Thompson’s valid appellate
waiver. We therefore grant the Government’s motion to dismiss in part and dismiss the
appeal as to all issues within the scope of the waiver. We otherwise affirm. This court
requires that counsel inform Thompson, in writing, of the right to petition the Supreme
Court of the United States for further review. If Thompson 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 Thompson.
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 IN PART,
DISMISSED IN PART