United States v. Turrentine , 288 F. App'x 100 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4860
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT LEE TURRENTINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cr-00206-F)
Submitted: March 18, 2008 Decided: July 23, 2008
Before KING and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Walter Hoytt Paramore, III, Jacksonville, North Carolina, for
Appellant. George Edward Bell Holding, United States Attorney,
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Lee Turrentine pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 924(c)
(2000), and was sentenced to 120 months in prison. He now appeals.
The United States has moved to dismiss the appeal, based on
Turrentine’s waiver of his appellate rights. Turrentine opposes
the motion. We find that the appeal waiver is valid and
enforceable and the issue Turrentine seeks to raise on appeal lies
within the scope of the waiver. We therefore grant the United
States’ motion and dismiss the appeal.
I
Turrentine signed a written plea agreement in which he
agreed:
to waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, to appeal
whatever sentence is imposed, including any
issues that relate to the establishment of the
advisory Guideline range, reserving only the
right to appeal from a sentence in excess of
the applicable advisory Guideline range that
is established at sentencing, . . . excepting
an appeal . . . based upon grounds of
ineffective assistance of counsel or
prosecutorial misconduct not known to the
defendant at the time of the defendant’s
guilty plea.
The plea agreement set forth the maximum sentence that Turrentine
faced and made clear that the sentencing guidelines applied.
At arraignment, the Assistant United States Attorney
summarized the terms of the plea agreement, including the waiver
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provision. Turrentine informed the court that the summary was
correct. Additionally, when the district court specifically
inquired about the waiver, Turrentine replied that he understood
its terms. The court ascertained that Turrentine comprehended the
charge against him and the applicable penalty. Turrentine
represented to the court that he and his attorney had discussed his
case and that he had voluntarily entered into the plea agreement.
Turrentine’s probation officer prepared a presentence
report. At sentencing, the district court overruled Turrentine’s
objection to a recommended four-level increase in his offense
level. Turrentine’s total offense level was 25, his criminal
history category was VI, and the maximum term of imprisonment to
which he was subject was ten years. See 18 U.S.C. § 922(g) (2000).
Accordingly, his advisory guideline range was 110-120 months in
prison. After considering the factors set forth at 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007), the district court sentenced
Turrentine to 120 months in prison.
Turrentine appeals, claiming that the four-level increase
in his offense level was error. The United States moves to dismiss
the appeal, contending that Turrentine validly waived his right to
appeal. Turrentine opposes the motion.
This case is governed by our decision in United
States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick
was whether a waiver-of-appellate rights provision in a plea
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agreement was enforceable after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005). We employed a two-
part analysis to decide the issue. First, we considered whether
the waiver was knowing and voluntary. Blick, 408 F.3d at 169.
After deciding that it was, we considered whether the issues raised
on appeal were within the scope of that motion. Because they were,
we dismissed the appeal. Id. at 169-73.
We review de novo the validity of a waiver. United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether a
waiver of the right to appeal is knowing and intelligent depends
upon the facts and circumstances surrounding its making, including
the defendant’s background, experience, and conduct. United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is
ineffective if the district court fails to question the defendant
about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.
1991), unless other evidence in the record shows that the waiver
was informed and voluntary. Davis, 954 F.2d at 186.
Here, Turrentine’s waiver was knowing and voluntary.
When he entered his plea, he was twenty-seven years old and had
completed the twelfth grade. Turrentine asserted that his plea was
not the result of threats or pressure to plead guilty and that he
wished to plead guilty in accordance with the plea agreement, which
he understood. Further, the waiver-of-appellate-rights provision,
which was set forth in a separate paragraph of the plea agreement,
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was specifically addressed at arraignment, and Turrentine
represented to the court that he understood the waiver.
While Turrentine’s plea agreement prohibits an appeal of
a sentence within the advisory guideline range, it is such a
sentence that he seeks to attack on appeal. The appellate issue
thus lies within the scope of the waiver and, under Blick, is not
reviewable on appeal.
We therefore grant the Government’s motion and dismiss
the 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
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