United States v. Morris Bridgers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MORRIS EDWARD BRIDGERS, a/k/a Muzak,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00183-BO-3)
Submitted: January 29, 2015 Decided: February 23, 2015
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Jenna Turner Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Morris Edward Bridgers appeals his conviction and 200-
month sentence imposed following his guilty plea, pursuant to a
written plea agreement, to conspiracy to distribute and possess
with intent to distribute one kilogram or more of heroin, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2012).
On appeal, Bridgers challenges the adequacy of the district
court’s Fed. R. Crim. P. 11 hearing and argues that the district
court’s explanation of its sentence was insufficient. * The
Government contends that the district court’s errors during the
plea colloquy were harmless and that Bridgers waived his right
to appeal his sentence. We affirm Bridgers’ conviction and
dismiss the appeal of his sentence.
Bridgers first challenges the district court’s Rule 11
colloquy. Prior to accepting a guilty plea, the trial court
must conduct a plea colloquy in which it informs the defendant
of, and determines he understands, the nature of the charge to
which he is pleading guilty, any mandatory minimum penalty, the
maximum possible penalty he faces, and the various rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
*
Bridgers’ counsel originally filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). However, after our
independent review of the record, we ordered counsel to file a
merits brief.
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United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
“In reviewing the adequacy of compliance with Rule 11, this
Court should accord deference to the trial court’s decision as
to how best to conduct the mandated colloquy with the
defendant.” DeFusco, 949 F.2d at 116. Because Bridgers did not
move to withdraw his guilty plea in the district court or
otherwise preserve any allegation of Rule 11 error, we review
the plea colloquy for plain error. United States v. General,
278 F.3d 389, 393 (4th Cir. 2002). In the guilty plea context,
a defendant demonstrates plain error by “show[ing] a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Massenburg, 564 F.3d 337, 343 (4th
Cir. 2009) (internal quotation marks omitted).
We conclude that the district court’s omissions did
not affect Bridgers’ substantial rights. Some of the omitted
information was contained in the written plea agreement, which
Bridgers signed. Next, we conclude that the district court’s
failure to advise Bridgers of its obligations to order
restitution and any applicable forfeitures were harmless because
neither were ordered in this case and Bridgers was informed he
faced a maximum fine of $10,000,000. Cf. United States v.
Fentress, 792 F.2d 461, 465-66 (4th Cir. 1986) (finding that
district court’s failure to inform defendant of authority to
order restitution was harmless where court informed defendant he
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faced maximum fine in excess of restitution eventually ordered).
Finally, the court’s failure to explain the nature of supervised
release was harmless because the term of incarceration and
supervised release that Bridgers actually received were less
than his potential maximum. See United States v. Good, 25 F.3d
218, 220 (4th Cir. 1994) (“[F]ailure to discuss the nature of
supervised release is harmless error if the combined sentence of
incarceration and supervised release actually received by the
defendant is less than the maximum term he was told he could
receive.”). We therefore affirm the judgment with respect to
Bridgers’ conviction.
Bridgers also argues that the district court failed to
adequately explain its chosen sentence. The Government responds
that Bridgers waived his right to appeal his sentence. When the
Government seeks to enforce an appeal waiver and did not breach
its obligations under the plea agreement, we enforce the waiver
if it was knowing and intelligent and the issues raised on
appeal fall within its scope. United States v. Copeland, 707
F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013).
We review the validity of an appellate waiver de novo. United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).
To determine whether an appeal waiver is knowingly and
intelligently entered, we examine the totality of the
circumstances, including the defendant’s experience, conduct,
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educational background, and familiarity with the agreement’s
terms. General, 278 F.3d at 400. Other factors to be
considered are whether the waiver language in the plea agreement
was “unambiguous” and “plainly embodied,” and whether the
district court fully questioned the defendant regarding the
waiver of his right to appeal during the Rule 11 colloquy. Id.
at 400-401; see 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).
We conclude that Bridgers’ waiver was knowing and
voluntary. Although the district court did not specifically
question Bridgers as to whether he specifically understood the
appellate waiver provision of the agreement, the court did
specifically discuss the waiver when describing the terms of the
agreement, and Bridgers affirmed that he had agreed to the terms
described by the court. Bridgers also confirmed that he was
thirty years old, had a ninth-grade education, could read and
understand English, and that he had had sufficient opportunity
to consult with his attorney. Moreover, the language of the
plea waiver is clear and unambiguous, waiving Bridgers’ right to
appeal whatever sentence was imposed, excluding only a sentence
in excess of the advisory Guidelines range determined at
sentencing. Because Bridgers’ sentence is below that range, the
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issue he seeks to appeal falls directly within the scope of his
waiver. We therefore dismiss the appeal of his sentence.
Accordingly, we affirm in part and dismiss in part.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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