United States v. Elmer Brown ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4502
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELMER KERMIT BROWN, a/k/a Elmo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (2:11-cr-00035-d-1)
Submitted: January 29, 2013 Decided: February 7, 2013
Before MOTZ, KING, and DAVIS, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
James C. White, Michelle M. Walker, LAW OFFICE OF JAMES C.
WHITE, P.C., Chapel Hill, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney, Denise
Walker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elmer Kermit Brown seeks to appeal his conviction and
sentence for conspiracy to distribute and possess with intent to
distribute 280 grams or more of cocaine base and 500 grams or
more of cocaine, in violation of 21 U.S.C. § 846 (2006). Brown
pleaded guilty pursuant to a written plea agreement and was
sentenced to 192 months’ imprisonment. On appeal, counsel for
Brown filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious issues for
appeal but questioning whether Brown’s guilty plea hearing
complied with Fed. R. Crim. P. 11, and whether the district
court erred at sentencing by considering conduct described by
counsel but not supported by evidence. The Government has moved
to dismiss the appeal of the sentence as barred by Brown’s
waiver of the right to appeal included in the plea agreement.
Brown filed a supplemental pro se brief challenging his sentence
as arbitrary and unreasonable. We affirm in part and dismiss in
part.
In the absence of a motion in the district court to
withdraw a guilty plea, this court’s review of the plea colloquy
is for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). Upon review of the plea agreement and the
transcript of the plea colloquy, we conclude that the district
court performed a thorough colloquy with Brown and complied with
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the requirements of Rule 11 when it accepted Brown’s guilty plea
as knowing and voluntary with an independent basis in fact.
Brown knowingly and voluntarily waived his right to appeal his
sentence. Accordingly, because Brown knowingly and voluntarily
entered into the waiver and the Government now seeks to enforce
it, we grant the motion to dismiss in part and dismiss all
sentencing issues that a defendant may lawfully waive. As to
any remaining issues, we have reviewed the entire record in
accordance with Anders and have found no unwaived meritorious
issues. We therefore affirm the district court’s judgment as to
all issues not encompassed by Brown’s valid waiver of appellate
rights.
This court requires that counsel inform Brown, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Brown 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 Brown. 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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