United States v. Grandison , 157 F. App'x 618 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4089
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VARDEN M. GRANDISON, a/k/a Verden M.
Grandison,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CR-01-126)
Submitted: October 28, 2005 Decided: December 7, 2005
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Michael S.
Nachmanoff, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Alexandria, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, Vincent L. Gambale,
Assistant United States Attorney, Alexander Chizhik, Special
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Varden M. Grandison appeals from the judgment of the
district court convicting him, following a guilty plea, of driving
as an habitual offender in violation of Va. Code Ann. § 46.2-357(Michie 2000), as assimilated by 18 U.S.C. §§ 7, 13 (2000), and
sentencing him to forty-eight months’ imprisonment. Finding no
error, we affirm.
First, we note the Government has moved to dismiss
Grandison’s appeal on the basis of the waiver of appellate rights
contained in its plea agreement with Grandison. Our review of the
plea agreement discloses that Grandison “knowingly waives the right
to appeal any sentence.” (J.A. at 34). Because the plea agreement
precludes Grandison only from appealing his sentence, and not his
conviction, and because the claim he seeks to raise relates only to
his conviction, we deny the Government’s motion.
Turning to the merits of Grandison’s appeal, he claims
the district court erred in accepting the Government’s factual
basis for his plea. Because Grandison failed to raise this claim
before the district court, we review for plain error. See United
States v. Olano, 507 U.S. 725, 732-34 (1993).
A knowing, voluntary, and intelligent guilty plea
“conclusively establishes the elements of the offense and the
material facts necessary to support the conviction,” and
furthermore “constitutes a waiver of all nonjurisdictional
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defects.” United States v. Willis, 992 F.2d 489, 490 (4th Cir.
1993). However, Grandison can raise on direct appeal the failure
of the district court to develop on the record a factual basis for
a plea as required by Rule 11(f) of the Federal Rules of Criminal
Procedure. See United States v. Mitchell, 104 F.3d 649, 652 n.2
(4th Cir. 1997).
We conclude the district court adequately developed a
factual record to support Grandison’s plea. The record clearly
reflects that Grandison operated a motor vehicle on a highway after
having been declared an habitual offender. Although Grandison
relies on a recent decision of this court, see United States v.
Smith, 395 F.3d 516 (4th Cir. 2005), for the proposition that the
roadway was not open to the public, we find Smith distinguishable.
Unlike Smith, there is no evidence in the record suggesting that
the highway Grandison was driving on was closed to the public. See
also United States v. Adams, 426 F.3d 730 (4th Cir. 2005). In the
absence of such evidence, we cannot conclude that the district
court committed plain error in accepting Grandison’s plea.
Accordingly, we affirm Grandison’s conviction. 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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