United States v. Simmons ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:06-cr-00649)
Submitted: May 31, 2007 Decided: June 6, 2007
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Brent Alan Gray, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Simmons pled guilty to two counts of a four-count
indictment to possession with the intent to distribute a quantity
of cocaine and five grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (2000) (Count 1),
and possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(I) (2000) (Count
3). The district court sentenced Simmons to an aggregate of 147
months’ imprisonment, four years of supervised release on each
count to run concurrently, and ordered payment of a $200 statutory
assessment.1 Simmons’ 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 Simmons’ plea, and whether the plea was knowing and
1
The probation officer calculated an advisory sentencing
guideline range for Simmons of 87 to 108 months’ imprisonment on
Count 1, founded on a total offense level of 27 and a criminal
history category of III, and a minimum consecutive sentence of 60
months’ imprisonment on Count 3. After careful consideration of
the facts and evidence, 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. 2006), prior to imposing
sentence.
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voluntary.2 Simmons was given an opportunity to file a pro se
brief, but has failed to do so.
Simmons 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 Simmons’ guilty plea.
See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
Moreover, Simmons 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 Simmons’ 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).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Simmons’ conviction and sentence.
This court requires that counsel inform his client, in writing, of
2
The plea agreement contained a provision in which Simmons
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 Simmons’ 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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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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