United States v. Bryant , 286 F. App'x 7 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4801
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN LYNN BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (7:04-cr-00128-FL)
Submitted: July 31, 2008 Decided: August 4, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for
Appellant. Anne Margaret Hayes, Stephen Aubrey West, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan L. Bryant pled guilty to two counts of a three-
count indictment to conspiracy to distribute and possess with the
intent to distribute more than 50 grams of crack cocaine and 500
grams of cocaine, in violation of 21 U.S.C. §§ 841, 846 (2000)
(Count 1), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2000) (Count
3). The district court sentenced Bryant to an aggregate of 204
months’ imprisonment, five years of supervised release on each
count to run concurrently, and ordered payment of a $200 statutory
assessment.1 Bryant’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but questioning whether the
district court complied with the requirements of Fed. R. Crim. P.
11 in accepting Bryant’s plea, and claiming he received ineffective
1
The probation officer calculated an advisory sentencing
guideline range for Bryant of 235 to 293 months’ imprisonment on
Count 1, founded on a total offense level of 37 and a criminal
history category of II, and an additional minimum consecutive
sentence of 60 months’ imprisonment on Count 3. After careful
consideration of the facts and evidence, and following the grant of
the Government’s motion for downward departure, the district court
made all the factual findings appropriate for that determination,
and considered the advisory sentencing range along with the other
factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2008), prior to imposing sentence.
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assistance of counsel.2 Bryant was given an opportunity to file a
pro se brief, but has failed to do so.
Bryant did not move in the district court to withdraw his
guilty plea, therefore his challenge to the adequacy of the Rule 11
hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). We have carefully
reviewed the transcript of the Rule 11 hearing and find no plain
error in the district court’s acceptance of Bryant’s guilty plea.
See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
Moreover, Bryant is bound by the statements he made at the Rule 11
hearing, see Blackledge v. Allison, 431 U.S. 63, 74 (1977), and we
find no evidence that Bryant’s plea was not knowing or voluntary.
See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992);
United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
Moreover, as Bryant acknowledges, his claim of
ineffective assistance of counsel must be brought in a collateral
proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively
appears from the face of the record that his counsel was
2
The plea agreement contained a provision in which Bryant
agreed to waive his right to contest his conviction and sentence
either on appeal or in a 28 U.S.C. § 2255 (2000) motion, except for
certain claims of ineffective assistance of counsel or
prosecutorial misconduct not asserted or evident here. However,
the Government has not asserted the waiver provision precludes
review of Bryant’s conviction or sentence on appeal. Thus, we
decline to enforce the appellate waiver. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing United States v.
Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
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ineffective. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). Bryant can make no such showing in this case.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Bryant’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a 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 thereof
was served on the client.
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
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