United States v. Byrd ( 2001 )

OPINION ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4934
LAWRENCE WILLIAM BYRD, a/k/a Sun,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-00-154)
Submitted: July 26, 2001
Decided: August 2, 2001
Modified on Rehearing: October 4, 2001
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Barbara L. Hartung, Richmond, Virginia, for Appellant. Kenneth E.
Melson, United States Attorney, Brian R. Hood, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lawrence William Byrd pled guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C.A.
§ 841 (West 1999). The district court sentenced Byrd to a 292-month
prison sentence to be followed by six years of supervised release. On
appeal, Byrd challenges his sentence, arguing that (1) it was based in
part on the narcotics involved in the dismissed conspiracy count in
violation of the plea agreement; (2) it was based on his statements that
were protected from use under the plea agreement; and (3) it was
increased based on the unrelated, dismissed transaction involved in
the conspiracy count. Finding no breach of the plea agreement and
because Byrd waived his right to appeal the sentence, we affirm in
part and dismiss in part.
We find that, contrary to Byrd's claim, the government made no
promises with respect to the use of relevant conduct in determining
his sentence. The plea agreement informed Byrd that he would be
sentenced according to the Sentencing Guidelines, and there was no
stipulation as to the amount of drugs attributable to Byrd or as to a
particular sentence. See United States v. Lambey, 974 F.2d 1389,
1395 (4th Cir. 1992) (upholding the denial of defendant's post-
sentencing request to withdraw his plea based on his expectation of
a lesser sentence). Rather, pursuant to the agreement, the government
dismissed the conspiracy count of the indictment, which would have
subjected him to a possible life sentence, instead of the thirty-year
maximum that he faced under the § 841 count.*
Byrd also contends that his sentence was improperly increased
based on his post-plea statements that were protected from use under
the plea agreement. However, in determining the amount of drugs
attributable to Byrd, the district court relied upon statements by coop-
erating individuals as to Byrd's involvement in a transaction. The
court did not refer to, or rely on, Byrd's protected statements in find-
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* The government had filed an information pursuant to 21 U.S.C.A.
§ 851 (West 1999), providing notice of Byrd's prior narcotics convic-
tions and the intention of the government to seek an enhanced sentence.
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ing the amount of drugs attributable to him. Because Byrd failed to
show that his sentence was increased based on the government's
breach of the plea agreement, see United States v. McQueen, 108 F.3d
64, 65-66 (4th Cir. 1997) (providing standard); United States v. Con-
ner, 930 F.2d 1073, 1076 (4th Cir. 1991) (providing burden of proof),
we affirm this portion of the appeal.
In his plea agreement, Byrd waived the right to appeal "any sen-
tence within the maximum provided in the statute(s) of conviction (or
the manner in which the sentence was determined)[] on any ground
whatever." The district court accepted Byrd's guilty plea at a hearing
conducted in accordance with Rule 11 of the Federal Rules of Crimi-
nal Procedure. We have reviewed Byrd's plea agreement and the Rule
11 colloquy and find that Byrd knowingly and intelligently waived his
right to appeal his sentence, which was within the statutory maxi-
mum. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995) (providing standard); United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992). Accordingly, we dismiss that portion of Byrd's
appeal challenging the inclusion as relevant conduct of the amount of
drugs involved in the dismissed count of the indictment and the deter-
mination of his offense level and ultimately his sentence based on that
amount of drugs. 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 IN PART; DISMISSED IN PART
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