United States v. Law , 348 F. App'x 849 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4942
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOOKER TRAVIS LAW, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00640-RBH-1)
Submitted: October 5, 2009 Decided: October 23, 2009
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Cameron B. Littlejohn, Jr., Columbia, South Carolina, for
Appellant. Alfred William Walker Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Booker Travis Law, III,
pled guilty to possession with intent to distribute fifty grams
or more of crack cocaine and 500 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006). The parties
stipulated in the plea agreement to a 180-month sentence in
exchange for the Government withdrawing its notice of sentence
enhancement under 21 U.S.C. § 851 (2006). See Fed. R. Crim. P.
11(c)(1)(C). The district court accepted the plea agreement
and, therefore, was bound to sentence Law to 180 months, which
it did.
On appeal, Law’s counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal. Counsel questions, however, whether the district court
fully complied with Rule 11 of the Federal Rules of Criminal
Procedure in accepting Law’s guilty plea and whether the
sentence is reasonable. Law filed a pro se supplemental brief,
challenging the reasonableness of the sentence.
Because Law did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To establish plain error, Law “must
show: (1) an error was made; (2) the error is plain; and (3) the
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error affects substantial rights.” United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009) (reviewing unpreserved Rule
11 error). “The decision to correct the error lies within our
discretion, and we exercise that discretion only if the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
and citations omitted).
Although the district court did not advise Law that he
would receive a negotiated sentence of 180 months, as required
by Fed. R. Crim. P. 11(c)(4), we find that the court’s omission
did not affect his substantial rights. Law does not allege
that, but for the Rule 11 error, he would not have pled guilty,
see Martinez, 277 F.3d at 532, and Law received the benefit of
the bargain in his plea agreement. Moreover, the district court
ensured that Law’s guilty plea was knowing and voluntary and
supported by a sufficient factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We
therefore affirm Law’s conviction.
Next, Law challenges the reasonableness of his
sentence. We conclude, however, that we do not have
jurisdiction over this portion of the appeal. Section 3742(c)
of the United States Code limits the circumstances under which a
defendant may appeal a sentence to which he stipulated in a Rule
11(c)(1)(C) plea agreement to claims that “his sentence was
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imposed in violation of law [or] was imposed as a result of an
incorrect application of the sentencing guidelines[.]” United
States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998);
United States v. Littlefield, 105 F.3d 527, 527-28 (9th Cir.
1997).
Here, Law’s sentence was not imposed in violation of
law. His 180-month sentence is well within the maximum sentence
of life imprisonment provided by 21 U.S.C.A. § 841(b)(1)(A)
(West Supp. 2009). Nor is his sentence a result of an incorrect
application of the guidelines. A sentence imposed pursuant to a
Rule 11(c)(1)(C) plea agreement is contractual and not based
upon the guidelines. See United States v. Cieslowski, 410 F.3d
353, 364 (7th Cir. 2005) (stating that “[a] sentence imposed
under a Rule 11(c)(1)(C) plea arises directly from the agreement
itself, not from the Guidelines”); Littlefield, 105 F.3d at
528. Because § 3742(c) bars review of sentences imposed
pursuant to a Rule 11(c)(1)(C) plea agreement and none of the
exceptions applies, we dismiss Law’s appeal of his sentence.
See United States v. Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir.
1994) (finding that § 3742(c)(1) bars appeal of sentence imposed
pursuant to Rule 11(c)(1)(C) plea agreement where “government
agreed to forego filing a sentence enhancement information for
prior criminal activities under 21 U.S.C. § 851”).
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the conviction and dismiss the
appeal of the 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 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 the client.
We dispense with oral argument because the facts and 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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