United States v. Darius Gaskins , 469 F. App'x 148 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4937
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
v.
DARIUS GASKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00173-WDQ-1)
Submitted: March 2, 2012 Decided: March 13, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James Wyda, Federal Public Defender, Gary W. Christopher, First
Assistant Federal Public Defender, Baltimore, Maryland, for
Appellant. John Walter Sippel, Jr., Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darius Gaskins seeks to appeal his conviction and the
140-month sentence imposed pursuant to a Federal Rule of
Criminal Procedure 11(c)(1)(C) plea agreement after Gaskins pled
guilty to one count of possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c) (2006).
Gaskins’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), suggesting that Gaskins’s plea
was invalid. The Government has moved to dismiss the appeal of
Gaskins’s sentence pursuant to Gaskins’s waiver of appellate
review in the plea agreement. For the reasons that follow, we
affirm Gaskins’s conviction and dismiss his appeal of his
sentence.
As to the validity of Gaskins’s plea, this court
reviews the Fed. R. Crim. P. 11 plea colloquy for plain error.
United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).
Our review of the record confirms that the Rule 11 colloquy was
free of plain error and that Gaskins’s plea was knowing and
voluntary. We therefore affirm Gaskins’s conviction.
As to Gaskins’s sentence, we note that it was imposed
pursuant to a Rule 11(c)(1)(C) plea agreement. “A defendant
receiving a sentence under a Rule [11(c)(1)(C)] plea agreement
may appeal only when his sentence was imposed in violation of
law or was imposed as a result of an incorrect application of
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the sentencing [G]uidelines.” United States v. Sanchez, 146
F.3d 796, 797 (10th Cir. 1998) (internal quotation marks and
alteration omitted); 18 U.S.C. § 3742(c)(1). A sentence within
the statutory parameters is not imposed in violation of law.
See, e.g., United States v. Littlefield, 105 F.3d 527, 527-28
(9th Cir. 1997) (per curiam). A sentence imposed pursuant to a
Rule 11(c)(1)(C) plea agreement cannot be the result of an
incorrect application of the Guidelines because the agreement is
contractual and not based on the Guidelines. United States v.
Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005); United States v.
Bethea, 154 F. App’x 329, 331 (4th Cir. 2005) (No. 04-4402).
Gaskins’s 140-month sentence is therefore not the result of an
incorrect application of the Guidelines, nor was it imposed in
violation of the law as it is within the applicable statutory
parameters. This court thus lacks jurisdiction to review
Gaskins’s sentence, and the appeal of his sentence is therefore
dismissed.
Accordingly, we affirm Gaskins’s conviction, grant the
Government’s motion to dismiss in part, and dismiss the appeal
of Gaskins’s sentence. This court requires that counsel inform
Gaskins, in writing, of his right to petition the Supreme Court
of the United States for further review. If Gaskins requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
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for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Gaskins. 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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