United States v. Earl Hill, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EARL FRANK HILL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, District
Judge. (3:14-cr-00114-MHL-1)
Submitted: June 18, 2015 Decided: June 22, 2015
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Scott W. Putney, Scott W. Putney, P.C., Norfolk, Virginia, for
Appellant. Peter Sinclair Duffey, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earl Frank Hill, Jr., appeals his conviction and 188-month
sentence imposed following his guilty plea to conspiracy to
distribute and possess with intent to distribute 100 grams or
more of heroin, in violation of 21 U.S.C. § 846 (2012). On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but questioning whether the appeal
waiver provision in Hill’s plea agreement was involuntary and
whether the sentencing court failed to adequately account for
Hill’s medical conditions. Hill has filed a pro se supplemental
brief, which also challenges the validity of his appeal waiver,
as well as the career offender Sentencing Guideline used to
enhance his sentence. The Government has moved to dismiss the
appeal pursuant to the appeal waiver provision. Hill opposes
the motion. For the reasons that follow, we grant the motion
and dismiss the appeal.
We review the validity of an appeal waiver de novo,
evaluating the issue “by reference to the totality of the
circumstances.” United States v. Copeland, 707 F.3d 522, 528
(4th Cir. 2013) (internal quotation marks omitted). “Plea
bargains rest on contractual principles, and each party should
receive the benefit of its bargain.” United States v. Blick,
408 F.3d 162, 173 (4th Cir. 2005) (internal quotation marks
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omitted). Where the Government seeks to enforce the appeal
waiver and did not breach its obligations under the plea
agreement, we will enforce the waiver if the record establishes
that the defendant knowingly and intelligently waived his right
to appeal, and the issues raised on appeal fall within the scope
of the waiver. United States v. Davis, 689 F.3d 349, 354-55
(4th Cir. 2012). “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
valid.” United States v. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012).
Hill’s testimony during the district court’s thorough plea
colloquy establishes that Hill understood the appeal waiver
provision and entered the waiver knowingly, intelligently, and
voluntarily. Hill’s counsel contends that the plea agreement
was an unconscionable contract of adhesion that rendered the
appeal waiver unenforceable. Although the plea agreement
permitted Hill to avoid significant additional sentencing
exposure and a separate charge, he was under no obligation to
accept the agreement or its incorporated appeal
waiver. See United States v. Mezzanatto, 513 U.S. 196, 209-10
(1995) (“The plea bargaining process necessarily exerts pressure
on defendants to plead guilty . . . but we have repeatedly held
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that the government may encourage a guilty plea by offering
substantial benefits in return for the plea” (internal quotation
marks omitted)); United States v. Cohen, 459 F.3d 490, 495 (4th
Cir. 2006) (holding that defendant’s unequal bargaining position
did not invalidate appeal waiver). Moreover, Hill asserts in
his pro se supplemental brief that his appeal waiver was
unintelligent because he was unaware when he entered the plea
agreement that the career offender Guideline used in calculating
his sentence is fundamentally flawed. Even accepting, for the
sake of argument, Hill’s claims regarding the enhancement,
“[t]he law ordinarily considers a waiver knowing, intelligent,
and sufficiently aware if the defendant fully understands the
nature of the right and how it would likely apply in general in
the circumstances—even though the defendant may not know
the specific detailed consequences of invoking it.” Thornsbury,
670 F.3d at 537 (internal quotation marks omitted). Thus, we
find nothing in the record to overcome Hill’s sworn testimony
during the plea colloquy or to otherwise establish that his plea
and incorporated appeal waiver were unknowing or involuntary.
Hill’s appeal waiver encompasses appeals of both his
conviction and any sentence within the 40-year statutory maximum
applicable to his offense. See 21 U.S.C. § 841(b)(1)(B) (2012).
We have thoroughly reviewed the record in accordance with Anders
and have identified no potentially meritorious issues that fall
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outside the waiver’s broad compass. We therefore grant the
motion to dismiss and dismiss Hill’s appeal. This court
requires that counsel inform Hill, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Hill 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 Hill.
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
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