United States v. Bennett ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4650
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC JEVONNE BENNETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:08-cr-00146-BR-1)
Submitted: August 16, 2010 Decided: August 27, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, 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Unpublished opinions are not binding precedent in this circuit.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:
Eric Jevonne Bennett appeals his conviction and
sentence of 360 months’ imprisonment imposed after he pled
guilty, pursuant to a plea agreement, to one count of possession
of a firearm after conviction of a felony, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006). On appeal, counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), indicating that there are no meritorious issues for
appeal, but questioning whether the district court made a
variety of sentencing errors and erred in denying Bennett’s
motion to withdraw his plea. The Government has moved to
dismiss Bennett’s appeal in part based on a waiver of appellate
rights in his plea agreement. Bennett has filed a pro se brief
arguing that his indictment and plea agreement are invalid due
to a typographical error in the spelling of his name.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews
the validity of an appellate waiver de novo, and will uphold the
waiver of appellate rights if the waiver is valid and the issue
on appeal is within the scope of the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
We grant in part the Government’s motion to dismiss
because several of the issues raised in Bennett’s Anders brief
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fall squarely within the compass of the waiver of appellate
rights to which Bennett agreed. Bennett’s plea agreement waived
his right to “any appeal pursuant to 18 U.S.C. § 3742, reserving
only the right to appeal from a sentence that is in excess of
the advisory Guideline range that is established at sentencing.”
Our review of the record leads us to conclude that the appellate
waiver was knowing and voluntary. As Bennett’s claims of error
in sentencing are foreclosed by the express terms of the waiver,
we dismiss the appeal with respect to those claims.
Turning to Bennett’s Anders claims, we first review
the adequacy of the Fed. R. Crim. P. 11 proceeding. Bennett’s
motion to withdraw his guilty plea serves to preserve the issue
of the adequacy of the Fed. R. Crim. P. 11 proceeding. See
United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008).
Our review of the record reveals that the court complied with
the mandates of Rule 11 and ensured that Bennett’s plea was
knowing, voluntary, and supported by an adequate factual basis.
Counsel identifies no deficiency in the Rule 11 proceeding, and
we concur in that assessment.
Counsel specifically questions whether the district
court erred in denying Bennett’s motion to withdraw his guilty
plea. This court reviews that decision for abuse of discretion.
United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007).
Withdrawal of a guilty plea is not a matter of right. United
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States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Rather,
the defendant bears the burden of showing a “fair and just
reason” for withdrawing his plea. Fed. R. Crim. P. 11(d)(2)(B).
“[A] ‘fair and just’ reason . . . is one that essentially
challenges . . . the fairness of the Rule 11 proceeding.”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
In determining whether a defendant has met his burden, courts
consider six factors. Ubakanma, 215 F.3d at 424. An
appropriately conducted Rule 11 proceeding, however, “raise[s] a
strong presumption that the plea is final and binding.” Lambey,
974 F.2d at 1394.
Bennett has neither made a credible showing that his
plea was not knowing or voluntary, nor credibly asserted his
innocence. Further, he did not move to withdraw his plea until
months after he entered the plea, he had close assistance of
counsel, and withdrawal of his plea would cause significant
waste of resources. Under these circumstances, we conclude that
the district court did not abuse its discretion in denying
Bennett’s motion.
Finally, Bennett argues that due to a typographical
error in the indictment and the plea agreement, the charges
against him should be dismissed. He does not argue that he was
not on notice as to the charges against him, nor does he claim
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that the error resulted in a case of mistaken identity. We find
his claim of error without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal that are not encompassed by the waiver of appellate
rights. We therefore affirm Bennett’s conviction and dismiss
the appeal to the extent Bennett seeks to challenge his
sentence. This court requires that counsel inform Bennett, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Bennett 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 Bennett. 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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