United States v. Bruce Talley , 589 F. App'x 198 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4500
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE DARNELL TALLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00296-BO-1)
Submitted: January 15, 2015 Decided: January 20, 2015
Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, dismissed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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:
Bruce Darnell Talley pled guilty, pursuant to a plea
agreement, to conspiracy to commit Hobbs Act robberies, in
violation of 18 U.S.C. § 1951(a) (2012), and brandishing a
firearm during and in furtherance of one of those robberies and
aiding and abetting the same, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(ii) (2012). The court sentenced Talley to 171
months’ imprisonment—the top the advisory Guidelines range.
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 sentence is substantively
reasonable. Talley has filed a pro se supplemental brief,
requesting that we review the record to determine whether the
sentence is substantively reasonable and whether the district
court discriminated against him based on his race at the
sentencing hearing. The Government has moved to dismiss the
appeal based on the appellate waiver in the plea agreement. We
grant the motion in part and dismiss the appeal in part.
Talley’s claim of racial discrimination, however, is outside the
scope of the waiver; as to that claim, we affirm.
We review the validity of an appellate waiver de novo.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013). A defendant’s waiver is valid if
he agreed to it “knowingly and intelligently.” United States v.
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Manigan, 592 F.3d 621, 627 (4th Cir. 2010). “To determine
whether a waiver is knowing and intelligent, we examine 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. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012) (internal quotation marks omitted). Generally, if
the district court fully questions the defendant regarding the
waiver of his right to appeal during the plea colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). Our review of the record
confirms that, under the totality of the circumstances, Talley’s
waiver of his appellate rights was knowing and voluntary and,
therefore, the appellate waiver is valid and enforceable.
We will enforce a valid waiver so long as “the issue
appealed is within the scope of the waiver.” Copeland, 707 F.3d
at 528 (internal quotation marks omitted). Talley waived his
right to appeal his convictions and sentence, reserving only the
right to appeal from a sentence in excess of the advisory
Guidelines range established at sentencing. We conclude that
Talley’s and counsel’s challenge to the substantive
reasonableness of the within-Guidelines sentence falls within
the scope of the valid and enforceable appellate waiver.
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The appellate waiver, however, does not preclude us
from considering Talley’s allegation that the district court
discriminated against him based on his race at the sentencing
hearing. Johnson, 410 F.3d at 151. Nevertheless, our review of
the sentencing transcript revealed no evidence substantiating
Talley’s allegation.
In accordance with Anders, we have reviewed the record
in this case and have found no unwaived and potentially
meritorious issues for appeal. To the extent Talley’s and
counsel’s claims are within the scope of the valid and
enforceable appellate waiver, we grant the Government’s motion
to dismiss the appeal. We otherwise affirm the district court’s
judgment.
We note, however, that although the district court
pronounced the correct restitution amount of $9434.44, the
judgment is incorrect in two respects: (1) the amount of
restitution owed to victim ASA Food Mart #3 should be $1134.94
instead of $1134.00; and (2) the total amount of restitution
should be $9434.44 instead of $9434.34. Accordingly, we remand
for correction of the judgment.
This court requires that counsel inform Talley, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Talley requests that a
petition be filed, but counsel believes that such a petition
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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 Talley. 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;
REMANDED
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