United States v. Speaks , 211 F. App'x 184 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD GRAY SPEAKS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-262)
Submitted: November 30, 2006 Decided: December 28, 2006
Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Randall S.
Galyon, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Gray Speaks pled guilty to conspiracy to
distribute fifty or more grams of cocaine base, in violation of 21
U.S.C. §§ 841(b)(1)(A), 846 (2000). Prior to the issuance of
United States v. Booker, 543 U.S. 220 (2005), the district court
sentenced Speaks to 219 months’ imprisonment. Speaks timely
appealed. He contends his sentence violates Booker because the
district court sentenced him based on facts not alleged in the
indictment, admitted by Speaks, or found by a jury beyond a
reasonable doubt. Further, he contends the district court treated
the sentencing guidelines as mandatory, in violation of Booker.
The Government asserts Speaks waived his right to appeal the
sentence by executing a valid and enforceable plea agreement
containing a waiver of appellate rights. We agree and dismiss the
appeal for that reason.
In paragraph 5 of his plea agreement, Speaks waived his
right to appeal “the conviction and whatever sentence is imposed.”
A defendant may waive the right to appeal if that waiver is knowing
and intelligent. United States v. Blick, 408 F.3d 162, 169 (4th
Cir. 2005); United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995) (determining whether a waiver is knowing and
intelligent by examining the background, experience, and conduct of
the defendant). Generally, if the district court fully questions
a defendant regarding the waiver of his right to appeal during the
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Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir.), cert. denied, 126 S. Ct. 461 (2005); United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of
whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. Blick, 408 F.3d
at 168.
The district court fully complied with the requirements
of Rule 11 during the plea colloquy, and Speaks’ waiver of
appellate rights was knowing and intelligent. Furthermore, a plea
agreement’s appellate waiver accepted prior to Booker is not
invalidated by the Booker decision. Blick, 408 F.3d at 170-73; see
also Johnson, 410 F.3d at 150-52 (rejecting the argument that a
defendant cannot waive the right to an appeal based on subsequent
changes in the law). We therefore conclude that Speaks’ appellate
waiver is valid and enforceable.
The appellate waiver contained four exceptions, including
situations in which the sentence was imposed in excess of the
statutory maximum or based on an impermissible factor.
Furthermore, we have held that a defendant’s valid waiver of his
right to appeal does not prevent “appellate review of a sentence
imposed in excess of the maximum penalty provided by statute or
based on a constitutionally impermissible factor such as race,.”
See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
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Speaks, however, was not sentenced above the statutory maximum for
his offense, and he has not alleged his sentence was based on any
impermissible factor recognized by this court. The statutory range
for Speaks’ offense was twenty years to life imprisonment under 21
U.S.C. § 841(b)(1)(A) (2000). Speaks received a sentence below the
statutory minimum by virtue of the Government’s 18 U.S.C. § 3553(e)
(2000) motion for a downward departure in light of Speaks’
substantial assistance.
We therefore dismiss Speaks’ appeal. 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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