United States v. Gilliam ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4581
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WYOMING FITZGERALD GILLIAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
Chief District Judge. (CR-03-25-BO)
Submitted: September 30, 2005 Decided: November 2, 2005
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wyoming Fitzgerald Gilliam pled guilty to possession with
intent to distribute more than five grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000), and was sentenced to a
term of seventy months of imprisonment. Gilliam now seeks to
appeal his sentence. Because he waived his right to appeal, we
grant the Government’s motion to dismiss the appeal.
This court reviews the validity of a waiver de novo.
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
uphold a waiver of appellate rights if the waiver is valid and the
issue being appealed is within the scope of the waiver. United
States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. Wessells, 936 F.2d at 167-68.
This court determined in United States v. Blick, 408 F.3d
162 (4th Cir. 2005), that a waiver of the right to appeal in a plea
agreement entered into prior to the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005), was not invalidated
by the change in law effectuated by that decision and that the
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Booker error fell within the scope of Blick’s generic waiver.
Blick, 408 F.3d at 170, 173 (“[A]t the time he entered the plea
agreement, both Blick and the United States expressly contemplated
and agreed that he would be sentenced in exactly the manner in
which he was, in fact, sentenced: the pre-Booker Guidelines
system.”); see also United States v. Johnson, 410 F.3d 137 (4th
Cir. 2005) (rejecting Johnson’s argument that a defendant cannot
waive the right to an appeal based on subsequent changes in the
law). Gilliam’s plea agreement similarly expressly contemplated he
would be sentenced in accordance with the sentencing guidelines.
Gilliam’s contention that his claim does not fall within
the scope of the appeal waiver because it concerns an upward
departure is without merit. An upward departure is a sentence that
departs from the applicable sentencing guidelines range. U.S.
Sentencing Guidelines Manual § 5K2.0. The district court did not
impose an upward departure in sentencing Gilliam because it did not
depart from the correctly calculated sentencing guidelines range.
Further, Gilliam’s reliance on United States v. Guevara,
941 F.2d 1299 (4th Cir. 1991), to argue that the Government may not
seek to enforce the waiver because it was too one-sided is
misplaced. In Guevara, this court construed a plea agreement that
contained a waiver of the defendant’s right to appeal but was
silent as to the government’s appeal rights. We held that “such a
provision against appeals must also be enforced against the
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government, which must be held to have implicitly cast its lot with
the district court, as the defendant explicitly did.” Guevara, 941
F.2d at 1299-1300. Gilliam’s plea agreement is distinguishable
because Gilliam explicitly waived his right to appeal and the
Government explicitly retained its right to appeal in the plea
agreement.
Finally, Gilliam does not dispute that his waiver was
knowing and voluntary. The appeal waiver was unambiguous, it was
reviewed by the court, and Gilliam acknowledged his understanding
of the waiver at the plea hearing. We therefore find the plea
waiver is both valid and enforceable.
Accordingly, the Government’s motion to dismiss this
appeal is granted. 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.
DISMISSED
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