United States v. Dials , 368 F. App'x 347 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4109
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TRAVIS SINTELL DIALS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00379-RBH-1)
Submitted: February 9, 2010 Decided: March 2, 2010
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Sintell Dials pled guilty to one count of
conspiracy to distribute and to possess with intent to
distribute cocaine and marijuana, in violation of 21 U.S.C.
§ 841(a)(1) (2006). In exchange for his plea, the Government
dropped the two remaining charges in the indictment: one count
of possession with intent to distribute cocaine and marijuana,
in violation of 21 U.S.C. § 841(a)(1), and one count of
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2006).
Pursuant to a stipulation in the plea agreement under Fed. R.
Crim. P. 11(c)(1)(C), the district court sentenced Dials to
seventy-eight months in prison. On appeal, Dials’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), in which she asserts that there are no meritorious
issues for appeal, but questions whether the district court
fully complied with Fed. R. Crim. P. 11 when conducting Dials’s
guilty plea and whether Dials’s sentence was unreasonable or
otherwise violated the law. Dials also filed a supplemental
brief challenging his sentence on numerous grounds. For the
reasons that follow, we affirm in part and dismiss in part.
The transcript of Dials’s plea hearing demonstrates
that the district court fully complied with Rule 11. Dials was
informed of the rights he was giving up by pleading guilty; the
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nature of the charges against him, what the government would
have to prove for each charge at trial, and the penalties for
each charge; the relevant fines and applicable forfeitures; and
that only the court makes the ultimate determination on
sentencing. Dials confirmed his understanding of this
information, noted that his counsel had done everything Dials
had asked, and reiterated numerous times that it was his desire
to plead guilty. Finally, the district court ensured the
existence of a factual basis for the plea. See Fed. R. Crim. P.
11(b).
In addition to the sentencing argument presented by
counsel in the Anders brief, Dials filed a supplemental pro se
brief in which he asserts that his sentence was unreasonable
because the district court failed to correctly calculate his
sentence under the Guidelines, to provide an explanation for the
deviation from the Guidelines range, and to consider the factors
in 18 U.S.C. § 3553(a) (2006). However, this court is without
jurisdiction to address Dials’s claimed sentencing errors.
Under 18 U.S.C. § 3742(a)(1) and (a)(2) (2006), a defendant may
appeal when the sentence “was imposed in violation of law [or]
was imposed as a result of an incorrect application of the
sentencing guidelines.” If, as here, a defendant has pled
guilty pursuant to a plea agreement that includes a specific
sentence, he may only pursue an appeal under subsections (a)(3)
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and (a)(4) only when “the sentence imposed is greater than the
sentence set forth in such agreement.” 18 U.S.C. § 3742(c)(1)
(2006). Subsections (a)(3) and (a)(4) permit an appeal of a
sentence that is greater than the Guidelines range or a sentence
“imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a)(3),
(a)(4) (2006). The district court imposed a sentence of
seventy-eight months, the exact term of imprisonment specified
in the plea agreement. Because the sentence imposed was not
greater than the stipulated sentence, Dials may appeal only
pursuant to subsections (a)(1) and (a)(2). We conclude that the
issues he seeks to raise do not fall within the parameters of
§ 3742(a)(1) or (a)(2).
First, Dials’s sentence was not imposed in violation
of the law. The presentence report determined that statutorily
he could be sentenced to a maximum term of twenty years; there
was no governing statutory minimum. The seventy-eight month
sentence imposed on Dials is well below the statutory maximum
and therefore not in violation of the law. Moreover, although
Dials challenges the application of the sentencing guidelines as
incorrect, where a sentence is imposed pursuant to a Rule
11(c)(1)(C) plea agreement, the sentence is contractual and not
based upon the Guidelines. See United States v. Cieslowski, 410
F.3d 353, 364 (7th Cir. 2005). Accordingly, application of
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§ 3742 requires dismissal of Dials’s appeal of his sentence for
lack of jurisdiction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Dials’s conviction and dismiss that
part of the appeal relating to his sentencing. This court
requires that counsel inform Dials, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Dials 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 Dials. 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 IN PART;
DISMISSED IN PART
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