United States v. Alexander ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4699
BRYANT LAMAR ALEXANDER, a/k/a
BA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4054
LONNIE HAMES, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-95-178-V)
Submitted: August 5, 1997
Decided: August 18, 1997
Before HALL, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John Stuart Bruce, Acting Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellants. Mark T. Calloway, United States Attorney, Gretchen C.
F. Shappert, Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bryant Lamar Alexander and Lonnie Hames, Jr., each pled guilty
to participating in a conspiracy to possess with intent to distribute and
to distribute cocaine and crack cocaine within 1000 feet of a school
and a playground in violation of 21 U.S.C. § 846 (1994). The court
sentenced Alexander to 168 months and Hames to 360 months impris-
onment, with each sentence to be followed by a ten-year term of
supervised release. Alexander appeals his conviction, and Hames
appeals his sentence. We dismiss Alexander's appeal based on the
waiver in his plea agreement and dismiss Hames' appeal because the
district court's decision not to depart is not reviewable.
Alexander contends that the district court violated Fed. R. Crim. P.
11(c)(1), when it failed to inform him of the mandatory ten-year term
of supervised release. The Government correctly notes, however, that
Alexander expressly waived his right to appeal in the plea agreement.
A defendant may waive the right to appeal if that waiver is knowing
and intelligent. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). In determining whether a waiver is knowing and
intelligent, we examine the particular facts and circumstances of the
case, including the background, experience, and conduct of the defen-
dant. Id.2
Although Alexander claims that he did not understand the full sig-
nificance of the waiver provision, the transcript of Alexander's Rule
11 hearing belies his claim. After reviewing the written plea agree-
ment with counsel, Alexander signed the agreement containing a pro-
vision that expressly waived the right to contest his conviction or
sentence in any direct appeal or post-conviction action, except for
claims of ineffective assistance of counsel or prosecutorial miscon-
duct. At the Rule 11 hearing, Alexander stated that he was satisfied
with counsel's services. The Government summarized the plea
agreement--including the waiver provision. Alexander acknowledged
his signature on the agreement and said that he understood and agreed
with the Government's summary. When the district court specifically
asked Alexander about the waiver, he stated that he understood he
was waiving his right to appeal. On these facts, we find that Alexan-
der's waiver is knowing and intelligent. See Broughton-Jones, 71
F.3d at 1146. Because a valid waiver forecloses the right to appeal,
we dismiss Alexander's appeal.
Hames asserts that the district court abused its discretion in failing
to grant a downward departure on the ground that criminal history
category VI overstated the seriousness of his criminal history. The
district court's refusal to depart below the guideline range is not
reviewable on appeal, unless the court mistakenly believes it lacks
authority to depart. United States v. Dorsey, 61 F.3d 260, 263 (4th
Cir. 1995) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990)), cert. denied, 116 S. Ct. 732 (1996). Hames stated that the
court acknowledged it had the authority to depart. Because the court
was aware of its authority to depart below the guideline range, we dis-
miss Hames' appeal.
Accordingly, we dismiss the appeals. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
DISMISSED
3