United States v. Cyrus ( 2003 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
                No. 01-4640
    CLARENCE EDWARD CYRUS, a/k/a
    Red, a/k/a CC,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of South Carolina, at Florence.
    Cameron McGowan Currie, District Judge.
    (CR-99-221)
    Submitted: October 30, 2002
    Decided: February 11, 2003
    Before WIDENER, WILKINS, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
    Decatur, Georgia, for Appellant. J. Strom Thurmond, Jr., United
    States Attorney, Mark C. Moore, Assistant United States Attorney,
    Columbia, South Carolina, for Appellee.
    2                       UNITED STATES v. CYRUS
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Clarence Edward Cyrus appeals his convictions for distribution of
    cocaine base and conspiracy to distribute cocaine and cocaine base in
    violation of 
    21 U.S.C. §§ 841
    , 846 (2000). Cyrus claims that the dis-
    trict court erred by accepting his guilty plea because it was not know-
    ingly made in accordance with Fed. R. Crim. P. 11. He also claims
    that the district court erred in its application of the sentencing guide-
    lines.1
    Cyrus claims that the district court’s acceptance of his plea prior
    to the completion of the presentence investigation report ("PSR") ren-
    dered it impossible for him to enter a knowing and intelligent plea.2
    He also claims that given his state of malingering, it was a virtual cer-
    tainty that he would face an enhanced sentence for obstruction of jus-
    tice, and would not receive credit for acceptance of responsibility. See
    USSG §§ 3C1.1, 3E1.1(a). We disagree. As late as June 5, 2001, the
    Assistant United States Attorney was willing to honor the stipulations
    in the plea agreement despite Cyrus’ ongoing efforts at obstructing
    the judicial process. Moreover, like the district court, we conclude
    that the determination of whether Cyrus received the benefit of the
    bargain contained in the plea agreement ultimately fell on Cyrus and
    his decision not to cooperate with the Government. Accordingly, we
    1
    U.S. Sentencing Guidelines Manual (2000).
    2
    In support of this proposition, Cyrus cites to United States v. Alvarez-
    Quiroga, 
    901 F.2d 1433
     (7th Cir. 1990). Although Alvarez-Quiroga does
    not stand for this proposition, we do note that the Seventh Circuit sug-
    gested similar reasoning in United States v. Salva, 
    902 F.2d 483
     (7th Cir.
    1990). We assume this to be the case upon which Cyrus relies. To the
    extent that Cyrus asks us to accept Salva, we have previously declined
    to do so, see United States v. DeFusco, 
    949 F.2d 114
    , 118-19 (4th Cir.
    1991), and we find no reason to depart from our previous ruling.
    UNITED STATES v. CYRUS                         3
    do not accept Cyrus’ contention that the stipulations as laid out in the
    plea agreement were an unobtainable sham.
    We likewise reject Cyrus’ claim that Fed. R. Crim. P. 11 necessar-
    ily requires the district court to review the PSR and the sentencing
    guidelines prior to acceptance of the plea. Rule 11 requires the district
    court to inform the defendant of the applicable mandatory minimum
    and maximum sentences relevant to his case, as well as the require-
    ment that the court consider the sentencing guidelines. Fed. R. Crim.
    P. 11(c)(1). Any attempt to read further into the rule, such as Cyrus
    suggests, is not supported in the plain language of the rule or any con-
    trolling caselaw. Accordingly, we reject this claim. See United States
    v. DeFusco, 
    949 F.2d 114
    , 118-19 (4th Cir. 1991).
    Because we conclude that Cyrus’ plea was knowingly, voluntarily,
    and intelligently made, it follows that the waiver of his appellate
    rights contained in the plea agreement is effective. See United States
    v. Marin, 
    961 F.2d 493
    , 496 (4th Cir. 1992). This waiver precludes
    review of his two remaining claims regarding the application of the
    sentencing guidelines.
    Accordingly, we affirm the judgment of the district court.3 We dis-
    pense 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
    3
    Regarding Cyrus’ request to file a responsive brief regarding the six-
    teen video-cassettes filed as a supplemental appendix by the Govern-
    ment, because we have not relied on the tapes in our disposition of the
    matter, we deny this request.
    

Document Info

Docket Number: 01-4640

Judges: Gregory, Per Curiam, Widener, Wilkins

Filed Date: 2/11/2003

Precedential Status: Non-Precedential

Modified Date: 11/6/2024