United States v. Middleton , 210 F. App'x 324 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4351
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JARNARO C. MIDDLETON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:04-cr-01094-PMD)
Submitted: December 14, 2006 Decided: December 19, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Brent Alan
Gray, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM.
Pursuant to a plea agreement, Jarnaro Carlos Middleton
pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2000), 18 U.S.C. § 924(a)(2)
(2000), and 18 U.S.C.A. § 924 (e) (West 2000 & Supp. 2006). The
district court sentenced him under the Armed Career Criminal Act to
the statutorily-mandated minimum sentence of 180 months of
imprisonment. Middleton’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising the issue of the
adequacy of the plea colloquy but stating that, in his view, there
are no meritorious issues for appeal. Middleton was advised of his
right to file a pro se supplemental brief but has not done so. We
affirm.
Middleton points out that the district court failed to
inform him that he could persist in his plea of not guilty as
required by Fed. R. Crim. P. 11(b)(1)(B) and also failed to discuss
the provision in his plea agreement waiving his appellate rights.
Because Middleton did not move in the district court to withdraw
his guilty plea, any error in the Rule 11 hearing is reviewed for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). Our review of the record on appeal convinces us that
the district court’s failure to explicitly tell Middleton that he
could persist in his plea of not guilty did not affect Middleton’s
substantial rights. And because the Government is not seeking to
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enforce the waiver provision in Middleton’s plea agreement, the
court’s omission in discussing the waiver also did not affect
Middleton’s substantial rights. United States v. Goins, 51 F.3d
400, 402 (4th Cir. 1995) (discussing factors courts should consider
in determining whether substantial rights affected in decision to
plead guilty).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Middleton’s conviction and sentence. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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 the client. 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
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