United States v. Bethea ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFRED PAIGE BETHEA, a/k/a Alfred Paige Lucas,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00377-RBH-1)
Submitted: February 25, 2010 Decided: March 11, 2010
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Alfred Paige Bethea pled
guilty to possession of a firearm and ammunition after
previously having been convicted of a felony, in violation of 18
U.S.C. § 922(g)(1) (2006). The parties stipulated in the plea
agreement to a twenty-four-month sentence. See Fed. R. Crim. P.
11(c)(1)(C). The district court accepted the plea agreement
and, therefore, was bound to sentence Bethea to twenty-four
months, which it did.
On appeal, Bethea’s counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal in light of Bethea’s waiver of appellate rights. 1 Counsel
questions, however, whether the district court fully complied
with Rule 11 of the Federal Rules of Criminal Procedure in
accepting Bethea’s guilty plea. Bethea filed a pro se
supplemental brief. 2 We affirm in part and dismiss in part.
1
Because the Government has not asserted the waiver on
appeal, we will conduct our review pursuant to Anders. United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007); see
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
2
Bethea notes in his pro se brief that state charges had
been dismissed against him before the federal charges were
filed. However, under the concept of dual sovereignty, state
prosecution does not bar subsequent federal prosecution of the
same person for the same act. United States v. Iaquinta, 674
F.2d 260, 264 & n.9 (4th Cir. 1982). To the extent Bethea also
(Continued)
2
Our review of the record on appeal leads us to
conclude that the district court fully complied with the
mandates of Rule 11 in accepting Bethea’s plea. Moreover, the
district court ensured that Bethea’s guilty plea was knowing and
voluntary and supported by a sufficient factual basis. See
United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir.
1991). We therefore affirm Bethea’s conviction.
With regard to Bethea’s sentence, we find that we do
not have jurisdiction over this portion of the appeal. Section
3742(c), Title 18, of the United States Code limits the
circumstances under which a defendant may appeal a sentence to
which he stipulated in a Rule 11(c)(1)(C) plea agreement to
claims that “his sentence was imposed in violation of law [or]
was imposed as a result of an incorrect application of the
sentencing guidelines[.]” United States v. Sanchez, 146 F.3d
796, 797 & n.1 (10th Cir. 1998); United States v. Littlefield,
105 F.3d 527, 527-28 (9th Cir. 1997).
Here, Bethea’s sentence was not imposed in violation
of law. His twenty-four-month sentence is well within the
maximum sentence of ten years of imprisonment provided by
questions whether the district court received all of his
recommendation letters at sentencing, it appears that the court
received the correspondence.
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18 U.S.C. § 924(a)(2) (2006). Nor is his sentence a result of
an incorrect application of the guidelines. A sentence imposed
pursuant to a Rule 11(c)(1)(C) plea agreement is contractual and
not based upon the guidelines. United States v. Cieslowski, 410
F.3d 353, 364 (7th Cir. 2005); Littlefield, 105 F.3d at 528.
Because § 3742(c) bars review of a sentence imposed pursuant to
a Rule 11(c)(1)(C) plea agreement and none of the exceptions
applies, we dismiss the appeal of Bethea’s sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the conviction and dismiss the
appeal of the sentence. This court requires that counsel inform
his client, in writing, of the right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client.
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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