United States v. Thomas ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4625
DARRYL THOMAS, a/k/a D,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-96-26)
Submitted: November 25, 1997
Decided: December 29, 1997
Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Robert G. Cabell, Jr., ROBERT CABELL & ASSOCIATES, Rich-
mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Nicholas S. Altimari, Assistant United States Attorney, Marc L.
Penchansky, Third Year Legal Intern, Richmond, Virginia, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
After pleading guilty, pursuant to a written plea agreement, to pos-
session with intent to distribute cocaine base, 1 and maintaining a place
for distribution and use of controlled substances, 2 Darryl Thomas
received a sentence of 240 months incarceration. In his plea agree-
ment, Thomas waived his right to appeal his sentence; however,
Thomas now appeals claiming that the district court sentenced him
contrary to law. Specifically, Thomas contends that the district court
erred by finding him responsible for at least 1.5 kilograms of crack
cocaine and sentencing him under the federal sentencing guidelines
for crack cocaine instead of powder cocaine. We find that Thomas
knowingly and freely waived his right to appeal; consequently, we
dismiss the appeal.
A defendant may, as part of a plea agreement, agree to waive his
right to appeal a sentence imposed under the federal sentencing
guidelines.3 Thomas's plea agreement provided, in part,
Defendant is aware that Title 18 United States Code, Section
3742 affords a defendant the right to appeal the sentence
imposed. Acknowledging all this, Defendant THOMAS
knowingly waives the right to appeal his sentence (or the
manner in which it was determined) on the grounds set forth
in Title 18, United States Code, Section 3742 or on any
other ground whatever, in exchange for the concessions
made by the United States in this Plea Agreement .
However, the waiver will have no effect unless the record shows that
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1 See 21 U.S.C. § 841 (1994).
2 See 21 U.S.C. § 856 (1994).
3 See United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
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it was knowing and voluntary, and that the court specifically ques-
tioned Thomas concerning the waiver provision.4
At the FED. R. CRIM. P. 11 colloquy, the district court thoroughly
questioned Thomas to ensure he was competent to enter a plea, and
that he understood the nature and consequences of his plea. Specifi-
cally, the court inquired into Thomas's education, mental health, use
of drugs or medication, and whether Thomas understood all the rights
he was forfeiting by pleading guilty. Thomas acknowledged that he
understood his rights, consulted with counsel, understood the conse-
quences of his plea, and was freely and voluntarily pleading guilty.
Further, the court asked Thomas if the agreed statement of facts accu-
rately reflected his participation in the criminal conduct to which he
was pleading guilty. Thomas answered, "Yes, sir." Accordingly, we
find that Thomas made an intelligent and informed decision when he
voluntarily pled guilty.5
Moreover, the court asked Thomas if he understood that he was
waiving the right to appeal his sentence. Thomas answered, "Yes,
sir." Further, the court inquired whether Thomas had discussed the
waiver provision with counsel and fully understood the consequences
of his action. Again, Thomas answered, "Yes, sir." Because the court
fully questioned Thomas during the Rule 11 hearing regarding waiv-
ing his appellate rights, and Thomas's statements at a plea colloquy
are "strong evidence of voluntariness,"6 the waiver of appellate rights
is valid and enforceable.7
Accordingly, we dismiss the appeal. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
DISMISSED
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4 See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991).
5 See North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v.
Alabama, 395 U.S. 238, 242 (1969).
6 See United States v. Defusco, 949 F.2d 114, 119 (4th Cir. 1991).
7 See United States v. Wessells , 936 F.2d 165 (4th Cir. 1991); United
States v. Wiggins, 905 F.2d 51 (4th Cir. 1990).
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