United States v. Latoya Jones , 514 F. App'x 280 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4714
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LATOYA EVETTE JONES, a/k/a Toy,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:11-cr-00066-GMG-DJJ-1)
Submitted: February 28, 2013 Decided: March 13, 2013
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Nicholas J. Compton, Assistant Federal Public Defender,
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latoya Evette Jones appeals her conviction and
114-month sentence entered pursuant to her guilty plea to
distribution of cocaine base within 1000 feet of a school. On
appeal, counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious
grounds for appeal but questioning whether Jones’ sentence was
unreasonably high. The Government contends that the appellate
waiver provision in Jones’ plea agreement bars any claim of
sentencing error. We affirm in part and dismiss in part.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). An appellate waiver
must be “the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Broughton-Jones,
71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and
citation omitted). We review de novo whether a defendant has
effectively waived her right to appeal. United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992).
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. General, 278
2
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks and
citation omitted). Generally, if a court fully questions a
defendant regarding the waiver of her right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, we will “refuse to enforce an otherwise valid waiver if
to do so would result in a miscarriage of justice.” Id.(internal quotation marks and citation omitted).
In the plea agreement, Jones agreed to waive all
appellate rights relating to her sentence except for claims that
her sentence exceeded the maximum statutory sentence. Our
review of the record convinces us that Jones’ waiver was knowing
and intelligent, and she does not contend otherwise. We further
conclude that the sentencing issue raised by counsel in the
Anders briefs falls within the scope of the appellate waiver
provision, and we therefore dismiss the appeal of Jones’
sentence.
In accordance with Anders, we have thoroughly examined
the entire record for any other potentially meritorious issues
outside the scope of Jones’ appeal waiver and have found none.
Therefore we affirm Jones’ conviction. This court requires that
counsel inform Jones, in writing, of the right to petition the
Supreme Court of the United States for further review. If Jones
requests that a petition be filed, but counsel believes that
3
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 Jones. 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
4