United States of America v. Damian Earl Ross

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIAN EARL ROSS,
Defendant - Appellant.
No. 24-4436
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIAN EARL ROSS,
Defendant - Appellant.
Appeals from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:23-cr-00165-WO-1; 1:23-cr-00272-
WO-1)
Submitted: March 11, 2025 Decided: March 13, 2025
Amended: March 13, 2025

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Before NIEMEYER, RICHARDSON, and BENJAMIN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam opinion.
ON BRIEF: Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Timberlake,
North Carolina, for Appellant. Julie Carol Niemeier, Assistant United Sates Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Damien Earl Ross pled guilty to two counts of bank larceny, in violation of 18
U.S.C. § 2113(b). The district court sentenced Ross to 90 months of imprisonment
followed by a three-year term of supervised release. On appeal, Ross’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 the substantive reasonableness of the
sentence. Ross was informed of his right to file a pro se supplemental brief, but he has not
done so. The Government has moved to dismiss the appeal pursuant to the appellate waiver
included in the plea agreement. We affirm in part and grant the Government’s motion and
dismiss in part.
Ross’s waiver of appellate rights does not prevent our review of the validity of the
plea itself. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018). We review the
adequacy of the Fed. R. Crim. P. 11 plea colloquy for plain error. See United States v.
Williams, 811 F.3d 621, 622 (4th Cir. 2016) (stating standard of review); see also
Henderson v. United States, 568 U.S. 266, 272 (2013) (describing plain error standard).
Before accepting a guilty plea, the district court must conduct a plea colloquy in which it
informs the defendant of, and determines that the defendant understands, the rights he is
relinquishing by pleading guilty, the nature of the charge to which he is pleading, and the
applicable maximum and mandatory minimum penalties he faces. Fed. R. Crim. P.
11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court
also must ensure that the plea was voluntary and not the result of threats, force, or promises
not contained in the plea agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual

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basis for the plea,” Fed. R. Crim. P. 11(b)(3). Here, the district court conducted a thorough
and complete Rule 11 hearing. We therefore conclude that Ross entered his plea knowingly
and voluntarily, and that a factual basis supported the plea.
With respect to Ross’s waiver of his appellate rights, “[w]e review an appellate
waiver de novo to determine whether the waiver is enforceable” and “will enforce the
waiver if it is valid and if the issue being appealed falls within the scope of the waiver.”
United States v. Boutcher, 998 F.3d 603, 608 (4th Cir. 2021) (internal quotation marks
omitted). An appellate waiver is valid if the defendant enters it “knowingly and
intelligently, a determination that we make by considering the totality of the
circumstances.” Id. “Generally though, if a district court questions a defendant regarding
the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the
defendant understood the full significance of the waiver, the waiver is valid.” McCoy, 895
F.3d at 362 (internal quotation marks omitted).
Our review of the record confirms that, with limited exceptions not applicable here,
Ross knowingly and intelligently waived his right to appeal his conviction and sentence.
We therefore conclude that the waiver is valid and enforceable and that the sentencing issue
counsel raises in the Anders brief 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 grounds for appeal that are outside the scope of the
appellate waiver. We therefore grant in part the Government’s motion to dismiss in part
and dismiss the appeal as to all issues covered by the appellate waiver. We affirm the
remainder of the judgment. This court requires that counsel inform Ross, in writing, of the

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right to petition the Supreme Court of the United States for further review. If Ross 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 Ross. 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

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