United States v. Thomas Russ ( 2023 )

USCA4 Appeal: 22-4581 Doc: 35 Filed: 08/30/2023 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4581
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS BRANDON RUSS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:20-cr-00507-D-1)
Submitted: June 8, 2023 Decided: August 30, 2023
Before RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam opinion.
ON BRIEF: Christopher S. Edwards, WARD & SMITH, PA, Wilmington, North
Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Thomas Brandon Russ pled guilty, pursuant to a written plea agreement, to
conspiracy to distribute and possess with intent to distribute 100 kilograms or more of
marijuana, in violation of 21 U.S.C. § 846, distribution of marijuana, in violation of
21 U.S.C. § 841(a)(1), and possession of firearms in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Russ to 120
months’ imprisonment and concurrent supervised release terms of 3 and 5 years. Russ’
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating
there are no meritorious issues for appeal, but raising as issues for review whether the
magistrate judge erred in the manner he informed Russ of the statutory minimum and
maximum sentences he faced during the Fed. R. Crim. P. 11 colloquy, whether Russ’ prison
term is reasonable, and whether the discretionary special conditions of supervised release
present in the judgment match those orally announced by the district court at sentencing.
Russ was informed of his right to file a pro se supplemental brief, but he has not done so.
Invoking the appeal waiver in Russ’ plea agreement, the Government moves to dismiss the
appeal. Russ’ counsel has responded. We grant the Government’s motion to dismiss the
appeal in part and affirm in part.
Pursuant to a plea agreement, a defendant may waive his appellate rights. United
States v. Archie, 771 F.3d 217, 221 (4th Cir. 2014). Where, as here, the Government seeks
enforcement of an appeal waiver and there is no claim that it breached its obligations under
the plea agreement, we will enforce the waiver to preclude an appeal of a specific issue if
the waiver is valid and the issue falls within the scope of the waiver. United States v. Blick,
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408 F.3d 162, 168 (4th Cir. 2005). Whether a defendant validly waived his right to appeal
is a question of law we review de novo. Id. The validity of an appeal waiver depends on
whether the defendant knowingly and voluntarily waived his right to appeal. United
States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018). To determine whether a waiver is
valid, we examine “the totality of the circumstances, including the experience and conduct
of the defendant, his educational background, and his knowledge of the plea agreement and
its terms.” Id. (internal quotation marks omitted). “Generally . . . if a district court
questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy
and the record indicates that the defendant understood the full significance of the waiver,”
the waiver is both valid and enforceable. Id. (internal quotation marks omitted).
We have thoroughly reviewed the record and conclude that Russ knowingly and
voluntarily waived his rights to appeal. In the plea agreement, Russ waived the rights to
appeal his conviction and “whatever sentence is imposed on any ground.” The challenges
to Russ’ convictions and sentence counsel raises for review fall squarely within the scope
of Russ’ valid waiver of appellate rights.
Counsel also questions whether the discretionary special conditions of supervised
release present in the judgment match those orally announced at sentencing. A district
court must announce all nonmandatory conditions of supervised release at the sentencing
hearing. United States v. Rogers, 961 F.3d 291, 296-99 (4th Cir. 2020). This
“requirement . . . gives defendants a chance to object to conditions that are not tailored to
their individual circumstances and ensures that they will be imposed only after
consideration of the factors set out in [18 U.S.C.] § 3583(d).” Id. at 300. In United States v.
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Singletary, we explained that a challenge to discretionary supervised release terms that
were not orally pronounced at sentencing falls outside the scope of an appeal waiver
because “the heart of a Rogers claim is that discretionary conditions appearing for the first
time in a written judgment . . . have not been ‘imposed’ on the defendant.” 984 F.3d 341,
345 (4th Cir. 2021). Our review of the record reflects that the district court orally
announced the discretionary special conditions of supervised release present in the
judgment.
In accordance with Anders, we also have reviewed the remainder of the record in
this case and have found no meritorious grounds for appeal. We therefore grant the
Government’s motion to dismiss the appeal in part, dismiss the appeal as to counsel’s
challenges to Russ’ convictions and prison sentence, and affirm in part. This court requires
that counsel inform Russ, in writing, of the right to petition the Supreme Court of the United
States for further review. If Russ 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 Russ.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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