United States v. Hunter , 290 F. App'x 599 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4880
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERRI LYNN HUNTER,
Defendant - Appellant.
No. 07-4959
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID SCOTT LEE,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:07-cr-00043-CMC-7; 0:07-cr-00043-CMC-4)
Submitted: July 30, 2008 Decided: August 25, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
No. 07-4880 affirmed; No. 07-4959 dismissed by unpublished per
curiam opinion.
Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina;
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellants. Kevin F. McDonald, Acting United States Attorney,
Jimmie Ewing, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Sherri Lynn Hunter and
David Scott Lee appeal the sentences imposed by the district court
after they pleaded guilty to conspiracy to possess with intent to
distribute and to distribute methamphetamine or a mixture
containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2000). We affirm Hunter’s sentence and dismiss
Lee’s appeal.
Hunter pled guilty, pursuant to a plea agreement, to one
count of conspiracy to possess with intent to distribute and to
distribute 500 grams or more of a mixture containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846. At sentencing, the district court concluded that Hunter
qualified for application of the safety valve that allowed for a
sentence below the statutory minimum of 120 months. See U.S.
Sentencing Guidelines Manual (USSG) §§ 2D1.1(b)(9), 5C1.2 (2006).
The district court denied Hunter’s motion for a downward variance
to a sentence of thirty months, and sentenced Hunter to eighty-
seven months of imprisonment. On appeal, Hunter argues that the
district court abused its discretion in denying her request for a
downward variance.
We review a sentence imposed by the district court for
abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597
(2007). We presume that a sentence imposed within the properly
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calculated Guidelines range is reasonable. United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States, 127
S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence). In considering the
district court’s application of the Guidelines, we review factual
findings for clear error and legal conclusions de novo. United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). Hunter argues
that the district court denied her request for a variance based on
a misunderstanding of the requirements for application of the
safety valve. Our review of the record leads us to conclude that
this assertion is without merit. The district court did not
misunderstand the application of the safety valve, but merely noted
that Hunter’s early cooperation with authorities assured her
eligibility for its application. We find that the district court
sufficiently articulated its reasons for denying Hunter’s request
for a variance, and did not abuse its discretion in reaching this
decision.
Lee pleaded guilty, also pursuant to a plea agreement, to
one count of conspiracy to possess with intent to distribute and to
distribute fifty grams or more of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Lee’s plea agreement
included a waiver of his right to appeal his conviction or
sentence. On appeal, Lee asserts that the district court erred in
sentencing him to 120 months of imprisonment based on a drug
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quantity of at least fifty grams of methamphetamine when the
presentence report (PSR) found him responsible for only 34.6 grams.
He also argues that the court erred in failing to apply the safety
valve provision to further reduce his sentence. Lee argues that he
did not waive his right to appeal the sentence in his case because
at the time he agreed to the waiver he could not have anticipated
that the district court would sentence him based on fifty grams of
methamphetamine when the presentence report found him responsible
for only 34.6 grams of methamphetamine. The Government argues that
Lee’s appeal is covered by the waiver.
We review the validity of a waiver de novo, United States
v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). 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 a district court fully questions a defendant regarding his
waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy,
the waiver is valid. Wessells, 936 F.2d at 167-68.
Lee does not assert that his waiver was not voluntary, or
that the Rule 11 discussion regarding the waiver was in any manner
inadequate. Nor does he assert that he is not guilty of
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involvement in a conspiracy to distribute fifty or more grams of
methamphetamine. Rather, he asserts that the district court’s
sentence was excessive in light of the amount of methamphetamine
attributed to him in the PSR and was not within the scope of the
waiver. We conclude that this argument is without merit. The
language of the waiver provision is very broad and excepts only
claims of ineffective assistance of counsel or prosecutorial
misconduct. The issues asserted on appeal are within the scope of
the waiver, which Lee voluntarily entered.
Accordingly, in case 07-4880, we affirm Hunter’s
sentence. In case 07-4959, we dismiss Lee’s 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.
No. 07-4880 AFFIRMED
No. 07-4959 DISMISSED
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