United States v. Redd , 384 F. App'x 279 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4633
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KUNTA KENTA REDD,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:08-cr-00043-D-1)
Submitted: June 8, 2010 Decided: June 24, 2010
Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kunta Kenta Redd pled guilty, pursuant to a written
plea agreement, to one count of conspiracy to distribute and to
possess with the intent to distribute cocaine and 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 846 (2006).
The district court calculated Redd’s advisory imprisonment range
under the U.S. Sentencing Guidelines Manual (2007) at 262 to 327
months and sentenced Redd to 324 months’ imprisonment. On
appeal, Redd’s counsel has filed an Anders * brief stating that
there are no non-frivolous issues for appeal, but questioning
whether the district court abused its discretion in imposing
sentence. Redd has filed a pro se supplemental brief in which
he, too, challenges his sentence. The Government has moved to
dismiss the appeal of Redd’s sentence based on Redd’s waiver of
appellate rights. We dismiss in part and affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
*
Anders v. California, 386 U.S. 738 (1967).
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(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
Our review of the record leads us to conclude that
Redd knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
in part and dismiss Redd’s appeal of his sentence. Although
Redd’s appeal waiver insulates his sentence from appellate
review, the waiver does not preclude our review of Redd’s
conviction pursuant to Anders.
Redd moved in the district court to withdraw his
guilty plea, and, by so moving, preserved the issue of the
adequacy of the Fed. R. Crim. P. 11 hearing. See United States
v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008). Our review of
the transcript of the Rule 11 hearing leads us to conclude that
the district court did not commit reversible error in accepting
Redd’s guilty plea. Although the district court failed to
ensure that Redd understood its obligation in determining a
sentence to consider possible departures under the Sentencing
Guidelines, as required by Fed. R. Crim. P. 11(b)(1)(M), we
conclude that this error did not affect Redd’s substantial
rights and therefore disregard it as harmless. See Fed. R.
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Crim. P. 11(h); Hairston, 522 F.3d at 341. The court otherwise
complied with Rule 11 in accepting Redd’s guilty plea, ensuring
that the plea was supported by an independent factual basis and
that Redd entered the plea knowingly and voluntarily with an
understanding of the consequences. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
With respect to the district court’s denial of Redd’s
motion to withdraw his guilty plea, we review that decision for
abuse of discretion. United States v. Dyess, 478 F.3d 224, 237
(4th Cir. 2007). In determining whether a defendant has met his
burden, six factors must be considered:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
cause prejudice to the [G]overnment; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
An appropriately conducted Rule 11 proceeding, however,
“raise[s] a strong presumption that the plea is final and
binding.” United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992). Here, the Rule 11 proceeding was appropriately
conducted, and Redd’s guilty plea was knowingly and voluntarily
made. We conclude that Redd did not credibly assert his legal
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innocence and that the motion to withdraw, filed nearly a year
after Redd entered his guilty plea, was untimely. It is
undisputed that Redd had the close assistance of trial counsel.
Finally, allowing Redd to withdraw his guilty plea would have
prejudiced the Government and inconvenienced the district court.
We are therefore satisfied that the district court did not abuse
its discretion in denying Redd’s motion to withdraw his guilty
plea. Dyess, 478 F.3d at 237.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues remaining for
appeal. We therefore affirm Redd’s conviction. This court
requires that counsel inform Redd, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Redd 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 Redd. 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 IN PART;
AFFIRMED IN PART
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