United States v. Roshad Heyward ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROSHAD ANDRE HEYWARD, a/k/a Shad, a/k/a Shod, a/k/a Harry,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Chief District Judge. (3:17-cr-00136-TLW-1)
Submitted: December 18, 2018 Decided: December 20, 2018
Before AGEE, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South Carolina, for Appellant.
Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roshad Andre Heyward pled guilty, pursuant to a written plea agreement, to
conspiracy to possess with intent to distribute and to distribute 28 grams or more of
cocaine base, in violation of 21 U.S.C. § 846 (2012). The district court sentenced
Heyward to 144 months’ imprisonment, a term below the 151- to 188-month Sentencing
Guidelines range. On appeal, 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 in applying a two-level sentencing
enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2016) for
possession of a firearm. Heyward was advised of his right to file a pro se supplemental
brief, but has not filed one. The Government declined to file a brief.
Generally, unpreserved sentencing errors are reviewed for plain error. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). However, a
defendant may waive appellate review of a sentencing issue if he raises and then
knowingly withdraws an objection to the issue before the district court. United States v.
Orsini, 907 F.3d 115, 119 (1st Cir. 2018); United States v. Cobb, 842 F.3d 1213, 1222
(11th Cir. 2016).
An appellant is precluded from challenging a waived issue on appeal. United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). Such a waiver is distinguishable
“from a situation in which a party fails to make a timely assertion of a right—what courts
typically call a ‘forfeiture,’” id. (quoting Olano, 507 U.S. at 733), which, as noted above,
may be reviewed on appeal for plain error. Olano, 507 U.S. at 733-34. “By contrast,
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waiver is intentional, and extinguishes an error so that there is no review, because the
defendant has knowingly and personally given up the waived right.” United States v.
Laslie, 716 F.3d 612, 614 (D.C. Cir. 2013) (internal quotation marks and citation
omitted).
Here, Heyward raised, and then withdrew, an objection to the § 2D1.1(b)(1)
enhancement. Heyward has therefore waived appellate review of the firearm
enhancement. Accordingly, we affirm the judgment of the district court.
In accordance with Anders, we have reviewed the record in this case and have
found no meritorious issues for appeal. This court requires that counsel inform Heyward,
in writing, of the right to petition the Supreme Court of the United States for further
review. If Heyward 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
Heyward. 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
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