United States v. Carter , 267 F. App'x 203 ( 2008 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4442
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JERRELL WATSON CARTER,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of Virginia, at Lynchburg.  Norman K. Moon, District
    Judge. (6:05-cr-00015-NKM-1)
    Submitted:   January 17, 2008          Decided:     January 22, 2008
    Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Sidney H. Kirstein, Lynchburg, Virginia, for Appellant. John L.
    Brownlee, United States Attorney, William F. Gould, Assistant
    United States Attorney, Charlottesville, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Jerrell Watson Carter pled guilty to possession with
    intent to distribute 50 grams or more of cocaine base, in violation
    of 
    21 U.S.C. § 841
     (2000), and aiding and abetting the use of a
    firearm in furtherance of a drug trafficking crime, in violation of
    
    18 U.S.C. § 924
    (c) (2000).            On appeal, Carter claims that the
    Government’s proffer at the Fed. R. Crim. P. 11 hearing was
    insufficient    to    support   the   firearm     conviction    and    that   the
    district    court    incorrectly      calculated    his     criminal    history
    category.     The Government asserts the appeal should be dismissed
    because Carter knowingly and voluntarily waived his right to
    appeal.     Because    we   find   the   appeal    waiver    was   knowing    and
    voluntary and that the issues raised by Carter are within the scope
    of the waiver, we dismiss the appeal.
    Carter’s plea agreement contained an appellate waiver
    that stated he waived the right to appeal “any and all issues
    related to [his] guilty plea and sentencing.”               The record reveals
    that Carter agreed to this waiver knowingly and voluntarily.*                 See
    United States v. Blick, 
    408 F.3d 162
    , 168-69 (4th Cir. 2005).
    *
    Although the district court failed to question Carter at the
    Rule 11 hearing about the appellate waiver in violation of Fed. R.
    Civ. P. 11(b)(N), because Carter does not assert that he was
    unaware of the waiver or that the district court’s failure affected
    the outcome of his guilty plea, he cannot establish plain error.
    See United States v. General, 
    278 F.3d 389
    , 400 n.5 (4th Cir. 2002)
    (holding that the district court’s failure to strictly comply with
    Rule 11 is subject to plain error review).
    - 2 -
    Moreover, Carter does not dispute that the issues he raises on
    appeal fall within the purview of his appellate waiver.    See id. at
    169-70.
    Accordingly, we dismiss Carter’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
    - 3 -
    

Document Info

Docket Number: 07-4442

Citation Numbers: 267 F. App'x 203

Judges: Traxler, Shedd, Duncan

Filed Date: 1/22/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024