United States v. Powell ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD EUGENE BOWLING POWELL,
Defendant - Appellant.
No. 09-4103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACEY SCOTT RICH,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Florence. R. Bryan Harwell, District
Judge. (4:08-cr-00057-RBH-1; 4:08-cr-00057-RBH-2)
Submitted: October 8, 2009 Decided: October 23, 2009
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina; Beattie Balentine Ashmore, Greenville,
South Carolina, for Appellants. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to plea agreements, Richard Eugene Bowling
Powell and Tracey Scott Rich pled guilty to one count of
interference with commerce by robbery, in violation of 18 U.S.C.
§§ 1951(a), 2 (2006), and one count of using, carrying, and
possessing firearms during, in relation to, and in furtherance
of, a crime of violence, in violation of 18 U.S.C. §§ 924(c), 2
(2006). The plea agreements included stipulated sentences of
twenty-five years for Powell and fifteen years for Rich, in
accordance with Fed. R. Crim. P. 11(c)(1)(C), in exchange for
the Government dismissing the remaining counts in the
indictment. The district court accepted the plea agreements
and, therefore, was bound to sentence Powell to 300 months and
Rich to 180 months, which it did.
On appeal, counsel have filed a joint brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in their view, there are no meritorious issues for
appeal. Counsel question, however, whether the district court
fully complied with Rule 11 of the Federal Rules of Criminal
Procedure in accepting the guilty pleas and whether the
sentences are reasonable. Powell and Rich were advised of their
right to file a pro se supplemental brief, but they have not
filed a brief. The Government declined to file a brief.
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Because neither Powell nor Rich moved in the district
court to withdraw his guilty plea, any error in the Rule 11
hearing is reviewed for plain error. * United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). To establish plain error,
appellants “must show: (1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(reviewing unpreserved Rule 11 error). “The decision to correct
the error lies within our discretion, and we exercise that
discretion only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at
343 (internal quotation marks and citations omitted).
Counsel have not identified any error in the Rule 11
hearings, and our review of the record reveals none. The
district court ensured that appellants’ guilty pleas were
knowing and voluntary and supported by a sufficient factual
basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991). We therefore affirm Powell’s and Rich’s
convictions.
Next, Powell and Rich challenge the reasonableness of
their sentences. We conclude, however, that we do not have
jurisdiction over this portion of the appeals. The federal
*
Powell filed a pro se motion to withdraw his plea, but
withdrew the motion before sentencing.
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statute governing appellate review of a sentence, 18 U.S.C.
§ 3742(c) (2006), limits the circumstances under which a
defendant may appeal a sentence to which he stipulated in a Rule
11(c)(1)(C) plea agreement to claims that “his sentence was
imposed in violation of law [or] was imposed as a result of an
incorrect application of the sentencing guidelines[.]” United
States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998);
United States v. Littlefield, 105 F.3d 527, 527-28 (9th Cir.
1997).
Here, appellants’ sentences were not imposed in
violation of law. Powell’s 216-month sentence and Rich’s
ninety-six-month sentence on the robbery count were well within
the 240-month statutory maximum. See 18 U.S.C. § 1951(a)
(2006). The eighty-four-month consecutive sentences on the
firearm count were mandated by statute, and were within the
maximum sentence of life imprisonment. See United States v.
Cristobal, 293 F.3d 134, 146-47 (4th Cir. 2002). Nor are the
sentences a result of an incorrect application of the
guidelines. A sentence imposed pursuant to a Rule 11(c)(1)(C)
plea agreement is contractual and not based upon the guidelines.
See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.
2005) (stating that “[a] sentence imposed under a Rule
11(c)(1)(C) plea arises directly from the agreement itself, not
from the Guidelines”); Littlefield, 105 F.3d at 528. Because
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§ 3742(c) bars review of sentences imposed pursuant to a Rule
11(c)(1)(C) plea agreement and none of the exceptions applies,
we dismiss the appeals of the sentences.
In accordance with Anders, we have reviewed the entire
records in these cases and have found no meritorious issues for
appeal. We therefore affirm the convictions and dismiss the
appeals of the sentences. This court requires that counsel
inform their clients, in writing, of the right to petition the
Supreme Court of the United States for further review. If a
client 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
the client. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
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