United States of America v. David Jovan McDonald

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4611
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID JOVAN MCDONALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:19-cr-00515-D-1)
Submitted: June 28, 2022 Decided: June 30, 2022
Before NIEMEYER and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
ON BRIEF: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. David
A. Bragdon, 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Unpublished opinions are not binding precedent in this circuit.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:
David Jovan McDonald pled guilty, pursuant to a written plea agreement, to
distribution of a quantity of heroin and five grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court sentenced McDonald to
108 months’ imprisonment. On appeal, McDonald’s 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 whether the district court erred by failing to order the disclosure
of the identity of the confidential informant involved in McDonald’s case. McDonald has
not filed a pro se supplemental brief, although he was notified of his right to do so. The
Government moves to dismiss the appeal as barred by the appellate waiver included in
McDonald’s plea agreement. We dismiss in part and affirm in part.
We review de novo the validity of an appeal waiver. United States v. Cohen, 888
F.3d 667, 678 (4th Cir. 2018). Where, as here, the Government seeks to enforce the appeal
waiver and has not breached the plea agreement, we will enforce the waiver if it is valid
and the issue being appealed falls within the waiver’s scope. United States v. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). A defendant validly waives his appeal rights if he
agreed to the waiver “knowingly and intelligently.” Id. To determine whether a waiver is
knowing and intelligent, “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. 2018) (internal quotation marks omitted). Generally, “if a district court questions
a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.] 11

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colloquy and the record indicates that the defendant understood the full significance of the
waiver, the waiver is valid.” Id. (internal quotation marks omitted). Upon review of the
plea agreement and the transcript of the Rule 11 hearing, we conclude that McDonald
knowingly and voluntarily waived his right to appeal and that the issue raised in the Anders
brief falls squarely within the compass of the appellate waiver. Accordingly, we grant the
Government’s motion in part.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal that fall outside of the appeal waiver. We
therefore grant the Government’s motion to dismiss in part and affirm the remainder of the
district court’s judgment. This court requires that counsel inform McDonald, in writing,
of the right to petition the Supreme Court of the United States for further review. If
McDonald 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 McDonald.
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.
DISMISSED IN PART,
AFFIRMED IN PART

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