United States v. Cephus Mitchell , 582 F. App'x 172 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CEPHUS MITCHELL, a/k/a C 4, a/k/a Lil C,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:11-cr-00472-PMD-18)
Submitted: August 21, 2014 Decided: August 25, 2014
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Affirmed in part, dismissed in part, and remanded by unpublished
per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Sean Kittrell, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cephus Mitchell pled guilty, pursuant to a Federal
Rule of Criminal Procedure 11(c)(1)(C) plea agreement, to:
conspiring to possess with intent to distribute and to
distribute a quantity of cocaine and cocaine base, in violation
of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012), and conspiring to use
or maintain various places for the purpose of manufacturing and
distributing controlled substances, in violation of 21 U.S.C.
§ 856(a)(1) (2012) (Count One); using and carrying a firearm
during and in relation to, and possessing a firearm in
furtherance of, a drug trafficking crime and a crime of
violence, and aiding and abetting the same, during which the
firearm was discharged, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(iii), 2 (2012) (Count Eleven); and using and
carrying a firearm during and in relation to, and possessing a
firearm in furtherance of, a crime of violence and a drug
trafficking crime, causing the death of a person through the use
of the firearm in such a manner to constitute murder, and aiding
and abetting, in violation of 18 U.S.C. §§ 924(c)(1), 924(j)(1),
2 (2012) (Count Thirteen). The district court imposed a total
term of 396 months’ imprisonment, the top of the 240 to 396
month range to which the parties stipulated in the plea
agreement. Mitchell appealed.
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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
court erred in imposing Mitchell’s sentence. Mitchell was
advised of his right to file a pro se supplemental brief, but
has not filed one. The Government declined to file a brief.
Subject to narrow exceptions, a defendant who agrees
to and receives a particular sentence pursuant to Rule
11(c)(1)(C) may not appeal that sentence. 18 U.S.C. § 3742(a)
(2012); United States v. Calderon, 428 F.3d 928, 932 (10th Cir.
2005). In this case, the district court imposed a sentence
within the stipulated range and the sentence did not exceed the
statutory maximum. Moreover, the sentence was not imposed as a
result of an incorrect application of the Sentencing Guidelines
because it was based on the parties’ agreement and not on the
district court’s calculation of the Guidelines. United States
v. Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v.
Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). Review of
Mitchell’s sentence is thus precluded by 18 U.S.C. § 3742(c).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we affirm the judgment of the district court with
respect to Mitchell’s convictions and we dismiss the appeal with
respect to Mitchell’s sentence. We remand to the district court
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with instructions to correct the judgment, pursuant to Fed. R.
Crim. P. 36, to reflect that the statutes of conviction for
Count One are 21 U.S.C. §§ 841(b)(1)(C), 846, 856(a)(1), for
Count Eleven are 18 U.S.C. §§ 924(c)(1)(A)(iii), 2, and for
Count Thirteen are 18 U.S.C. § 924(c)(1), (j)(1), 2.
This court requires that counsel inform Mitchell, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Mitchell 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 Mitchell. 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, AND REMANDED
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