United States v. Pittman , 288 F. App'x 97 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4613
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMMIE RAY PITTMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00043-5)
Submitted: March 4, 2008 Decided: July 18, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert W. Adams, Hickory, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina;
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jammie Ray Pittman pled guilty pursuant to a plea
agreement to conspiracy to manufacture and possess methamphetamine
with the intent to distribute, in violation of 21 U.S.C. §§ 841 and
846 (2000). On appeal, Pittman argues the district court, having
stricken a two-level enhancement for obstruction of justice
recommended by the probation officer, erred by not further reducing
his sentencing range upon granting the Government’s motion for
downward departure. His brief claims without reference to the
record that “[h]e did not give up his right to appeal from a
Judgment which was entered based on a miscalculation in the
Presentence Report.” Because we find the appellate waiver that is
a provision of Pittman’s plea agreement was knowing and voluntary
and the issue raised by Pittman is within the scope of the waiver,
we dismiss the appeal.
Pittman’s plea agreement contains an appellate waiver
that expressly provides he “waives all such rights to contest the
conviction and/or the sentence except for: (1) claims of
ineffective assistance of counsel, and (2) prosecutorial
misconduct.” His appeal does not raise either of these issues.
When the government seeks to enforce a waiver of
appellate rights and the appellant does not claim the government
breached the plea agreement, this court will enforce the waiver if
the record establishes the defendant knowingly and voluntarily
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agreed to waive the right to appeal, and the issue being appealed
is within the scope of the waiver. See United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). The record reveals that Pittman
agreed to this waiver knowingly and voluntarily.* See United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991)
(explaining that generally, if a district court fully questions a
defendant regarding his waiver of appellate rights during the Fed.
R. Crim. P. 11 colloquy, the waiver is valid).
Accordingly, we dismiss Pittman’s appeal. 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.
DISMISSED
*
Pittman does not assert on appeal that his appellate waiver
was invalid.
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