United States v. Landrum , 293 F. App'x 997 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER FRANK LANDRUM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-01148-HMH-1; 7:07-cv-70144-HMH)
Submitted: September 9, 2008 Decided: September 26, 2008
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Russell W. Mace, III, MACE LAW FIRM, Myrtle Beach, South Carolina,
for Appellant. Kevin F. McDonald, Acting United States Attorney, E.
Jean Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Landrum seeks to appeal his conviction and
sentence after pleading guilty to conspiracy to possess with intent
to distribute and distribution of five kilograms or more of cocaine
and fifty grams or more of crack cocaine in violation of 21
U.S.C.A. §§ 841(a)(1), 841(b)(1)(A), 846 (West 1999 & Supp. 2008).
Landrum claims on appeal that he did not receive discovery or a
copy of the presentence report (PSR), so that he was unable to
participate in his own defense, and that his plea was unknowing and
involuntary. Landrum also seeks to appeal his 264-month sentence.
The Government replies that Landrum’s claims are without merit and
barred by a valid waiver of appellate rights contained in the
signed plea agreement.
Landrum argues that, although his attorney received the
discovery and PSR in a timely manner, Landrum himself never
received a copy and therefore he was unable to review the documents
and aid in his own defense. He also claims that his sentence is
unreasonable because the district court did not consider all of the
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors. The
Government contends that, because Landrum’s guilty plea was knowing
and voluntary, and the plea agreement contains a waiver of appeal,
the claims Landrum wishes to raise are barred. Landrum contends
that the waiver is unenforceable because the district court did not
specifically address him regarding his appeal waiver. Because
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Landrum did not challenge the propriety of the plea colloquy in the
district court, our review is for plain error. United States v.
Vonn, 535 U.S. 55, 59 (2002); United States v. Martinez, 277 F.3d
517, 527 (4th Cir. 2002).
On plain error review, this court may notice an error
that was not preserved by timely objection only if the defendant
can demonstrate that: (1) there was error; (2) it was plain; and
(3) the error affected the defendant’s substantial rights. United
States v. Olano, 507 U.S. 725, 732-34 (1993). Even when these
three conditions are satisfied, this court may exercise its
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted). This
plain error standard also applies to determine whether a defect in
the plea colloquy precludes enforcement of an appeal waiver. See
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
Here, the district court erred in failing to specifically
question Landrum regarding his appeal waiver. See Fed. R. Crim. P.
11(b)(1)(N); United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005) (“An appeal waiver is not knowingly or voluntarily made if
the district court fails to specifically question the defendant
concerning the waiver provision of the plea agreement during the
Rule 11 colloquy and the record indicates that the defendant did
not otherwise understand the full significance of the waiver.”);
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United States v. Wessells, 936 F.2d 165, 168 (4th Cir. 1991)
(finding waiver unenforceable because “the transcript of Wessells’
Rule 11 hearing before the district court reveals that the court
did not question Wessells specifically concerning the waiver
provision of the plea agreement.”). However, we hold that the
district court did not commit reversible “plain error” because
there was no impact or effect on Landrum’s substantial rights.
An error is substantial if it was so prejudicial as to
affect the outcome of the proceedings. Id.; Martinez, 277 F.3d at
532. In the guilty plea context, to prove that an error is
substantial, the defendant must show that, but for the error, he
would not have pled guilty. Martinez, 277 F.3d at 532. Landrum
has not made such a showing. He asserts that he did not fully
understand the consequences of entering into the agreement,
“mainly, that he was giving up his right to appeal, and that he
would not be given a chance to receive a downward departure
pursuant to 5K1.1 . . . .” Landrum does not state that he would
not have pled guilty had he known he was waiving his right to
appeal.
The inquiry then turns to whether the waiver was knowing
and intelligent. 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). To determine whether a waiver is
knowing and intelligent, this court examines the background,
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experience, and conduct of the defendant. United States v.
Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). Generally, if
the district court fully questions a defendant regarding the waiver
of his right to appeal during the Fed. R. Crim. P. 11 colloquy, the
waiver is both valid and enforceable. Johnson, 410 F.3d at 151;
Wessells, 936 F.2d at 167-68. 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.
This court examines “the totality of the circumstances,
including the experience and conduct of the accused, as well as the
accused’s educational background and familiarity with the terms of
the plea agreement” when determining the validity of an appellate
waiver. General, 278 F.3d at 400. Here, the language of the
appellate waiver was plain. Landrum signed the waiver, with advice
of counsel. Landrum never demonstrated any doubt or question
regarding his plea agreement or waiver of rights. He was satisfied
with his time for preparation of the case and representation by his
counsel.* Landrum enjoys good mental health, according to the PSR,
*
The claims raised in Landrum’s brief that he did not receive
discovery, the plea agreement, or the PSR are belied by his sworn
statements. At the plea hearing, Landrum stated that he was
provided with ample opportunity to discuss his case with his
attorney, with whom he was fully satisfied, and that he had no
complaints regarding anyone else involved in the case. At
sentencing, Landrum stated that he and his attorney “thoroughly
reviewed the Presentence Report.” (J.A. 23). “Solemn declarations
in open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in the face
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and has never been prescribed any medication or been treated for a
mental condition. His attorney stated that Landrum fully
participated in the decision to plead guilty. Landrum also does
not deny that he knew he had waived his right to appeal.
Reviewing the totality of the circumstances, see General,
278 F.3d at 389, we conclude that the appellate waiver is valid and
enforceable. We therefore dismiss Landrum’s appeal based on the
waiver. 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
of the record are wholly incredible.” Blackledge v. Allison, 431
U.S. 63, 74 (1977).
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