Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 09-5172
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
CHAD MICHAEL SPAUR,
Defendant Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00051-JPB-DJJ-1)
Submitted:
August 13, 2010
Decided:
September 14, 2010
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam

opinion.
Sherman L. Lambert, Sr., THE LAW OFFICES OF SHERMAN L. LAMBERT,

SR., PLLC, Shepherdstown, West Virginia, for Appellant.
Betsy
C. Jividen, Acting United States Attorney, Erin K. Reisenweber,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chad
Michael
Spaur
pled
guilty
pursuant
to
plea
agreement to possession with intent to distribute cocaine base,

in violation of 21 U.S.C. 841(a)(1) (2006).
The district
court sentenced him to 146 months of imprisonment.
On appeal,
counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning whether the district court erred in
making factual findings at sentencing.
Spaur was informed of
his right to file a pro se supplemental brief but has not done
so.
The Government responds by relying on Spaurs waiver of
appellate rights and moving to dismiss the appeal.
We affirm
the judgment below in part and dismiss the appeal in part.

A
defendant
may
waive
the
waiver is knowing and intelligent.
right
to
appeal
if
that
United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007).
Generally, if the district
court fully questions a defendant regarding the waiver of his

right to appeal during the Fed. R. Crim. P. 11 colloquy, the
waiver
is
valid
and
enforceable.
United
States
v.
Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991).
The question of whether a
defendant validly waived his right to appeal is a question of

law that we review de novo.
United States v. Blick, 408 F.3d
162, 168 (4th Cir. 2005).

2
Our review of the record leads us to conclude that

Spaur knowingly and voluntarily waived the right to appeal any
sentence
within
the
statutory
maximum.
Spaurs
146-month
sentence is within the applicable twenty-year statutory maximum.

21 U.S.C. 841(b)(1)(C) (2006).
Moreover, the issue raised on
appeal is a sentencing issue within the scope of the waiver.
We
therefore grant, in part, the Governments motion to dismiss,

which is set forth in its brief, and dismiss Spaurs appeal of
his sentence.
Although the waiver provision in the plea agreement
precludes our review of Spaurs sentence, it does not affect our
review of any errors in Spaurs conviction that may be revealed
by our review pursuant to Anders.
The transcript of the plea
colloquy discloses that the district court fully complied with

the mandates of Rule 11 in accepting Spaurs guilty plea.
The
district court ensured that the plea was entered knowingly and
voluntarily and was supported by an independent factual basis.
See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th
Cir. 1991).
Accordingly, as the record reveals no infirmity in
the entry of Spaurs guilty plea, we affirm his conviction.

In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the plea agreements waiver of appellate rights.
We
therefore affirm Spaurs conviction and dismiss the appeal of

3
his
sentence.
This
court
requires
that
counsel
inform
his
client, in writing, of the right to petition the Supreme Court

of the United States for further review.
If the client requests
that
believes
petition
be
filed,
but
counsel
that
such
petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.
Counsels motion
must state that a copy thereof was served on the client.

dispense
with
oral
argument
because
the
facts
and
We
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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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

August 13, 2010

September 14, 2010

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam

Sherman L. Lambert, Sr., THE LAW OFFICES OF SHERMAN L. LAMBERT,

Unpublished opinions are not binding precedent in this circuit.

agreement to possession with intent to distribute cocaine base,

court sentenced him to 146 months of imprisonment.

counsel has filed a brief pursuant to Anders v. California, 386

Spaur was informed of

The Government responds by relying on Spaurs waiver of

appellate rights and moving to dismiss the appeal.

the judgment below in part and dismiss the appeal in part.

waiver is knowing and intelligent.

United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).

Generally, if the district

court fully questions a defendant regarding the waiver of his

The question of whether a

defendant validly waived his right to appeal is a question of

United States v. Blick, 408 F.3d

162, 168 (4th Cir. 2005).

Our review of the record leads us to conclude that

sentence is within the applicable twenty-year statutory maximum.

Moreover, the issue raised on

appeal is a sentencing issue within the scope of the waiver.

therefore grant, in part, the Governments motion to dismiss,

The transcript of the plea

colloquy discloses that the district court fully complied with

Accordingly, as the record reveals no infirmity in

the entry of Spaurs guilty plea, we affirm his conviction.

therefore affirm Spaurs conviction and dismiss the appeal of

client, in writing, of the right to petition the Supreme Court

If the client requests

petition would be frivolous, then counsel may move in this court

must state that a copy thereof was served on the client.

contentions are adequately presented in the materials before the

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