United States v. Anthony Jennings , 540 F. App'x 155 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4127
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY JOSEPH JENNINGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:11-cr-02078-TLW-1)
Submitted: September 24, 2013 Decided: September 26, 2013
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia, South
Carolina, for Appellant. William E. Day, II, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Joseph Jennings pled guilty to armed bank
robbery, 18 U.S.C. §§ 2113(a), (d) (2006), and using and
carrying a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1)(A) (2006). Jennings’ written
plea agreement included a Federal Rule of Criminal Procedure
11(c)(1)(C) stipulated sentencing range of 87 to 108 months’
imprisonment. The district court imposed a 105-month sentence.
Jennings’ attorney has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal but asking this court to consider
whether the district court adequately complied with Rule 11 in
accepting Jennings’ guilty plea and whether Jennings’ sentence
is reasonable. Although advised of his right to do so, Jennings
has not filed a pro se supplemental brief. The Government
declined to file a response. ∗ We affirm in part and dismiss in
part.
Because Jennings did not move to withdraw his guilty
plea in the district court, the adequacy of the Rule 11 hearing
∗
The Government has not sought enforcement of the waiver of
appellate rights in the plea agreement. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (recognizing that
the Government may file a responsive brief raising the appellate
waiver issue or do nothing and allow this court to perform the
Anders review).
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is reviewed for plain error only. United States v. Martinez,
277 F.3d 517, 524–26 (4th Cir. 2002). To demonstrate plain
error, a defendant must show: (1) there was error; (2) the error
was plain; and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725 (1993). In the guilty plea
context, a defendant meets his burden to establish that a plain
error affected his substantial rights by showing a reasonable
probability that he would not have pled guilty but for the
district court’s Rule 11 omissions. United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). Our thorough
review of the record reveals that the district court adequately
complied with Rule 11 in conducting the guilty plea colloquy.
Thus, we conclude that Jennings’ guilty plea was knowing and
voluntary and supported by an independent basis in fact, and we
find no plain error in the district court’s acceptance of his
guilty plea.
Next, we conclude that we lack jurisdiction to review
Jennings’ sentence. The federal statute governing appellate
review of a sentence, 18 U.S.C. § 3742(c) (2006), limits the
circumstances under which a defendant may appeal a sentence to
which he stipulated in a Rule 11(c)(1)(C) plea agreement to
claims that the sentence was imposed in violation of law or as a
result of an incorrect application of the Sentencing Guidelines.
18 U.S.C. §§ 3742(a)(1)-(2), (c)(1) (2006); United States v.
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Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998) (concerning
Rule 11(c)(1)(C)’s predecessor provision, Rule 11(e)(1)(C)).
Because the sentence imposed by the district court neither
violated the law nor resulted from an incorrect application of
the Guidelines, United States v. Cieslowski, 410 F.3d 353, 364
(7th Cir. 2005) (“A sentence imposed under a Rule 11(c)(1)(C)
plea arises directly from the agreement itself, not from the
Guidelines.”), our review of Jennings’ sentence is precluded by
§ 3742(c).
In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
therefore affirm Jennings’ convictions and dismiss his appeal to
the extent he challenges his sentence. This court requires that
counsel inform Jennings in writing of the right to petition the
Supreme Court of the United States for further review. If
Jennings 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
Jennings. Finally, we dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART; DISMISSED IN PART
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