United States v. John Spears ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN JOSEPH SPEARS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:13-cr-00054-F-2)
Submitted: August 29, 2014 Decided: September 4, 2014
Before AGEE and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:
John Joseph Spears pled guilty in accordance with a
written plea agreement to conspiracy to commit armed bank
robbery in violation of 18 U.S.C. § 371 (2012), and was
sentenced to sixty months of imprisonment. On appeal, Spears’
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), conceding there are no meritorious claims, but
raising two issues: (1) whether the district court committed
error by not offering an adequate explanation for the sentence
imposed; and (2) whether the district court erred by not
properly considering Spears’ extraordinary personal history and
characteristics in denying his motion for a variance sentence.
Spears was advised of his right to file a pro se supplemental
brief but did not do so. The United States moves to dismiss the
appeal based on a waiver-of-appellate-rights provision in the
plea agreement. Spears opposes the motion. For the reasons
that follow, we dismiss in part, and affirm in part.
In the plea agreement, Spears waived his right to
appeal his sentence, except for grounds not extant in this
appeal. Upon review of the record, we conclude that the waiver
is valid and enforceable. We further find that the issues
Spears seeks to raise on appeal——the two sentencing issues
raised in counsel’s Anders brief——fall within the scope of the
waiver. United States v. Blick, 408 F.3d 162, 168-70 (4th Cir.
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2005). Accordingly, we grant the motion to dismiss the appeal,
insofar as it relates to sentencing, and do not further address
counsel’s sentencing issues on appeal.
The appeal waiver did not apply to Spears’ conviction,
however. Having reviewed the entire record, we find that the
district court substantially complied with Fed. R. Crim. P.
11(b)(1), there was a factual basis for the plea, and the plea
was knowing and voluntary. Because Spears did not move in the
district court to withdraw his guilty plea, we review the
adequacy of the Fed. R. Crim. P. 11 hearing for plain error
only, United States v. Martinez, 277 F.3d 517, 524–27 (4th Cir.
2002), and find none.
Pursuant to Anders, we have reviewed the entire record
for meritorious, nonwaivable issues and have found none. We
therefore dismiss the appeal of his sentence and affirm Spears’
conviction. This court requires that counsel inform Spears, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Spears requests that such
a petition be filed, but counsel believes that the 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 of the motion was served on Spears. We
dispense with oral argument because the facts and legal
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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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