United States v. D'Quel Washington , 632 F. App'x 106 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
D’QUEL NAJAE WASHINGTON, a/k/a Problem,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W.
Flanagan, District Judge. (2:14-cr-00013-FL-1)
Submitted: November 24, 2015 Decided: December 3, 2015
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
D’Quel Najae Washington pled guilty, pursuant to a written
plea agreement, to conspiracy to distribute and possess with the
intent to distribute 28 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2012) (Count 1), use
and carry of a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2012) (Count 13), and possession of a stolen firearm, in
violation of 18 U.S.C. §§ 922(j), 924 (2012) (Count 15). The
district court imposed concurrent 105-month low-end-of-the-
Guidelines-range sentences on Counts 1 and 15, to be served
consecutive to a mandatory minimum sentence of 60 months on
Count 13.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding that there are no
meritorious issues that are reviewable in light of Washington’s
appellate waiver, but arguing that the district court clearly
erred in its drug quantity determination at sentencing. The
Government filed a motion to dismiss the appeal on the ground
that Washington knowingly and intelligently waived the right to
appeal his conviction and sentence. Washington’s counsel filed
a response in opposition to the motion, citing our duty to
review the record under Anders. Although informed of his right
to file a pro se brief, Washington has not done so. We grant
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the Government’s motion to dismiss in part with respect to all
issues falling within Washington’s appellate waiver. As to
those issues beyond the scope of the waiver and subject to
review pursuant to our duty under Anders, we deny the
Government’s motion but affirm the district court’s judgment.
We review de novo a defendant’s waiver of appellate rights.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). A
defendant may waive the right to appeal as part of a valid plea
agreement. United States v. Manigan, 592 F.3d 621, 627 (4th
Cir. 2010). In assessing whether an appellate waiver bars a
defendant’s appeal, we analyze both the validity and the scope
of the waiver. United States v. Blick, 408 F.3d 162, 171 n.10
(4th Cir. 2005). To determine whether Washington knowingly and
intelligently waived his appellate rights, we look “to the
totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks omitted). “Generally, 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.” Copeland, 707 F.3d at 528
(internal quotation marks omitted).
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Here, the terms of the waiver were clear and in plain
English, informing Washington that he waived “the right to
appeal the conviction and whatever sentence is imposed,”
including “any issues that relate to the establishment of the
advisory Guideline range.” At his Fed. R. Crim. P. 11 plea
colloquy, Washington confirmed that he read and understood the
plea agreement and its terms and that he had an opportunity to
discuss the terms of the agreement with counsel. Furthermore,
the district court questioned Washington regarding the plea
waiver and Washington indicated that he understood the provision
limited his ability to appeal his sentence.
Accordingly, considering the totality of the circumstances,
we conclude that Washington knowingly and intelligently agreed
to the appellate waiver. Therefore, we grant the Government’s
motion to dismiss with respect to all waivable issues, including
whether the district court clearly erred in its drug quantity
determination.
Nonetheless, because a valid appellate waiver provision in
a plea agreement does not foreclose review of every issue that
might be raised on appeal, we review the record, pursuant to
Anders, for any nonwaivable issues. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (listing issues not
waived by appellate waiver). Our review of the record in
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accordance with Anders does not reveal the existence of any
nonwaivable, meritorious issue.
We therefore grant the Government’s motion to dismiss in
part and dismiss the appeal as to any issues for which waiver is
legally permissible. We deny in part the Government’s motion to
dismiss with respect to any nonwaivable issues but affirm the
district court’s judgment as to any ground not encompassed by
Washington’s knowing and intelligent appellate waiver.
This court requires that counsel inform Washington, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Washington 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 Washington.
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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