United States v. Hayes ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4287
EDWIN J. "TOMMY" HAYES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-00-242)
Submitted: December 7, 2001
Decided: February 15, 2002
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Keith N. Hurley, HURLEY & KOORT, P.L.C., Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, John S.
Davis, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
2 UNITED STATES v. HAYES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edwin J. "Tommy" Hayes pled guilty to obstruction of proceedings
before the Environmental Protection Agency and Federal Bureau of
Investigation, in violation of 18 U.S.C.A. § 1505 (West 2000), and
the district court sentenced Hayes to a twelve-month-and-one-day
term of imprisonment. Hayes appeals, challenging the district court’s
upward departure at sentencing and the validity of his guilty plea. We
affirm in part and dismiss in part.
In his plea agreement, Hayes waived the right to appeal his sen-
tence on any ground whatsoever. The district court accepted Hayes’
guilty plea at a hearing conducted in accordance with Rule 11 of the
Federal Rules of Criminal Procedure. We have reviewed Hayes’ plea
agreement and the Rule 11 colloquy and find that Hayes made a
knowing and intelligent waiver of his right to appeal the district
court’s upward departure at sentencing. See United States v. Brown,
232 F.3d 399, 402-03 (4th Cir. 2000) (providing standard). We there-
fore dismiss this portion of the appeal.
Hayes also challenges the validity of his guilty plea on the ground
that he did not voluntarily waive his right to a jury trial because the
district court, by upwardly departing, rejected the terms of the plea
agreement and did not allow him to receive the benefit of his bargain.
Contrary to Hayes’ assertion that the plea agreement was a Rule
11(e)(1)(C) type agreement which is binding on the court once
accepted by the court, our review of the agreement leads us to con-
clude that the agreement falls within the purview of Rule 11(e)(1)(B)
because the government agreed to "recommend that the defendant be
sentenced at the lower end of the applicable guideline range." (JA 10)
See United States v. Ewing, 957 F.2d 115, 118 (4th Cir. 1992) ("[T]he
government’s promise to recommend a sentence at the low end of the
applicable Guideline range was of the 11(e)(1)(B) type."). Because
UNITED STATES v. HAYES 3
Hayes’ plea agreement is a Rule 11(e)(1)(B) agreement, it was not
binding on the district court, and the court did not violate the terms
of the agreement by departing upward at sentencing. We therefore
find that Hayes is not entitled to relief on this claim.
Accordingly, we affirm in part and dismiss in part. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART