United States v. Jarvis Davis , 691 F. App'x 720 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4741
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS ALONZO DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:15-cr-00097-FL-1)
Submitted: June 1, 2017 Decided: June 8, 2017
Before WILKINSON, KING, and AGEE, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, First Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarvis Alonzo Davis appeals his convictions and concurrent 168-month prison
terms imposed after he pled guilty, pursuant to a plea agreement, to distribution of
cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and being a felon in possession of
a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), conceding there are no meritorious issues for
appeal, but asserting that the district court improperly based the length of Davis’ sentence
on his need for treatment. Davis has filed a pro se supplemental brief also challenging
the reasonableness of his sentence. The Government has filed a motion to dismiss the
appeal based on the appellate waiver in Davis’ plea agreement. We dismiss the appeal in
part, vacate in part, and remand.
“A defendant may waive the right to appeal his conviction and sentence so long as
the waiver is knowing and voluntary.” United States v. Davis, 689 F.3d 349, 354 (4th
Cir. 2012) (citing United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)). We review
the validity of an appeal waiver de novo “and will enforce the waiver if it is valid and the
issue appealed is within the scope of the waiver.” Id. at 354-55 (citing United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005)). Our independent review of the record supports
the conclusion that Davis knowingly and voluntarily waived his right to appeal his
convictions and any sentence imposed within the statutory maximum and that the issues
he seeks to raise on appeal fall within the scope of the waiver. Thus, we conclude that
the waiver is valid and enforceable as to those issues.
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A valid waiver does not waive all appellate claims, however. Specifically, a valid
appeal waiver does not preclude a challenge to a sentence on the ground, inter alia, that it
exceeds the statutory maximum. United States v. General, 278 F.3d 389, 399 n.4 (4th
Cir. 2002); Marin, 961 F.2d at 496. The 168-month sentence imposed on Davis’
§ 922(g) conviction exceeds the 120-month statutory maximum, see 18 U.S.C.
§ 924(a)(2), and therefore is not within the scope of the appeal waiver. Accordingly, we
deny the Government’s motion to dismiss as to this issue, vacate Davis’ sentence on the
firearm charge and remand to the district court for entry of an amended judgment to
reflect a sentence of 120-months on the § 922(g) conviction.
In accordance with Anders, we have reviewed the record for any other potentially
meritorious, unwaived issues, and we have found none. We therefore vacate Davis’
sentence on the § 922(g) conviction and remand to the district court with instructions to
enter a sentence of 120 months on this count. The sentence on the drug distribution
conviction is undisturbed by this decision. In all other respects, we grant the
Government’s motion to dismiss and dismiss the appeal. This court requires that counsel
inform Davis, in writing, of his right to petition the Supreme Court of the United States
for further review. If Davis requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a copy thereof was
served on Davis. We dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before this court and argument would not aid in
the decisional process.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
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