United States v. Joneathon Blakney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4337
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONEATHON LORENZO BLAKNEY, a/k/a Bird,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:10-cr-01172-TLW-1)
Submitted: November 2, 2012 Decided: November 7, 2012
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathy Price Elmore, ORR ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joneathon Lorenzo Blakney pled guilty pursuant to a
written plea agreement. On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious grounds for appeal, but raising the
following issues: (1) whether Blakney’s plea hearing was valid
under Fed. R. Crim. P. 11, and (2) whether Blakney’s waiver of
his appellate rights was valid. Despite notice, Blakney did not
file a pro se supplemental brief. For the reasons that follow,
we affirm.
Because Blakney did not move in the district court to
withdraw his guilty plea, we review any errors in the Rule 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002); see United States v. Muhammad, 478
F.3d 247, 249 (4th Cir. 2007) (discussing elements of plain
error). Our review of the record establishes that the district
court complied with Rule 11’s requirements, ensuring that
Blakney’s plea was knowing and voluntary, that Blakney
understood the rights he was giving up by pleading guilty and
the sentence he faced, and that he committed the offense to
which he pled guilty. Accordingly, we discern no error in the
district court’s acceptance of Blakney’s guilty plea.
Second, we agree with appellate counsel that Blakney
knowingly and voluntarily waived his right to this appeal in his
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plea agreement and that the district court specifically reviewed
this waiver at Blakney’s plea hearing. 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 enforce the waiver if it is valid and
the issue appealed is within the scope thereof. United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appeal waiver
is valid if the defendant knowingly and intelligently agreed to
the waiver. Id. at 169.
Considering the record as required, United States v.
General, 278 F.3d 389, 400 (4th Cir. 2002), and having
previously concluded that his Rule 11 proceeding was proper, we
find that Blakney’s waiver of the instant appeal is both valid
and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). Because, however, the Government has not
sought to rely on the waiver, as it has failed to file any
motion to dismiss or responsive brief in this court, we have
addressed Blakney’s appeal on the merits. United States v.
Metzger, 3 F.3d 756, 757-58 (4th Cir. 1993).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Blakney was sentenced within his properly calculated advisory
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sentencing range, after the district court expressly considered
the 18 U.S.C. § 3553(a) (2006) sentencing factors. Blakney has
failed to overcome the appellate presumption of correctness
accorded such a sentence. We therefore affirm Blakney’s
conviction and sentence. This court requires that counsel
inform Blakney, in writing, of the right to petition the Supreme
Court of the United States for further review. If Blakney
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 Blakney. 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
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