United States v. Dante Bright ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4857
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANTE JAMERUS BRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:10-cr-00078-H-2)
Submitted: May 6, 2013 Decided: May 30, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Sarah Jessica Farber, NORTH CAROLINA PRISONER LEGAL SERVICES,
INC., Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Dante Jamerus Bright pled guilty, pursuant to a plea
agreement, to conspiracy to distribute and possess with the
intent to distribute 280 grams or more of cocaine base and 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006), and possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A) (2006). On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal, but questioning the reasonableness of Bright’s
sentence. Although advised of his right to file a pro se
supplemental brief, Bright has not done so. The Government has
moved to dismiss the appeal from Bright’s sentence on the basis
of the waiver of appellate rights contained in Bright’s plea
agreement. For the reasons that follow, we grant the
Government’s motion and dismiss the appeal from Bright’s
sentence, and we affirm his conviction.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006), and this
court has consistently upheld the validity of appellate waivers.
See, e.g., United States v. Manigan, 592 F.3d 621, 627 (4th Cir.
2010) (noting that this court will enforce appellate waivers
when validly executed). A valid waiver will preclude appeal of
a given issue if the issue is within the scope of the waiver.
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United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. Id.“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Blick, 408 F.3d at 169. This determination,
often made based on the sufficiency of the plea colloquy and
whether the district court questioned the defendant about the
appeal waiver, ultimately turns on an evaluation of the totality
of the circumstances. Id. These circumstances include all of
“the particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the
accused.” Id. (internal quotation marks omitted).
We have thoroughly reviewed the plea agreement and the
transcript of the Fed. R. Crim. P. 11 hearing. Based on the
totality of circumstances in this case, we conclude that Bright
knowingly and voluntarily entered into the plea agreement and
understood the waiver. Accordingly, the appeal waiver is
enforceable.
Bright’s challenge to the reasonableness of the
sentence falls within the scope of the waiver. In his plea
agreement, Bright waived the right to appeal his sentence,
including any claims related to the determination of his
advisory Guidelines range, reserving only the right to appeal
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from a sentence greater than the Guidelines range established at
sentencing. Bright’s sentence was below the Guidelines
sentence. Accordingly, we grant the Government’s motion to
dismiss and dismiss the appeal from Bright’s sentence.
Although the appeal waiver precludes our review of
Bright’s sentence, the waiver does not bar review of his
convictions. Because Bright did not move to withdraw his guilty
plea in the district court or raise any objections during the
Rule 11 colloquy, the plea colloquy is reviewed for plain error.
United States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To
demonstrate plain error, a defendant must show that: (1) there
was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). A defendant’s substantial rights are
affected if the court determines that the error “influenced the
defendant’s decision to plead guilty and impaired his ability to
evaluate with eyes open the direct attendant risks of accepting
criminal responsibility[.]” United States v. Goins, 51 F.3d
400, 402-03 (4th Cir. 1995) (internal quotation marks omitted);
see also United States v. Martinez, 277 F.3d 517, 532 (4th Cir.
2002) (holding that defendant must demonstrate he would not have
pled guilty but for the error). We have reviewed the record and
discern no error warranting correction on plain error review.
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In accordance with Anders, we have thoroughly reviewed
the entire record for any other potentially meritorious issues
outside the scope of Bright’s appeal waiver and have found none.
We therefore affirm Bright’s convictions, grant the Government’s
motion to dismiss and dismiss the appeal from his sentence.
This court requires that counsel inform Bright, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Bright requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Bright. 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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