United States v. Curtis Branch

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LAVON BRANCH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (4:11-cr-00082-F-1)
Submitted: October 11, 2012 Decided: October 23, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Curtis Lavon Branch pled guilty, pursuant to a plea
agreement, to possession with intent to distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (2006), and
felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (2006). The district court sentenced Branch to 240
months’ imprisonment on the first charge and 120 months’
imprisonment on the second, to be served concurrently. On
appeal, Branch’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that he found no
meritorious issues for appeal but questioning whether the
district court imposed a procedurally unreasonable sentence by
basing the drug quantity determination and resulting advisory
Guidelines range calculation upon uncorroborated hearsay of an
unidentified informant. The Government has moved to dismiss
Branch’s appeal, asserting that he waived the right to appeal
his sentence in his plea agreement. We dismiss in part and
affirm in part.
We review de novo whether a defendant has effectively
waived his right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). An appellate waiver must be “the
result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citation
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omitted). To determine whether a waiver is knowing and
intelligent, this court examines the totality of the
circumstances, including the accused’s experience, conduct,
educational background, and familiarity with the plea
agreement’s terms. United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). Generally, if a district court fully questions
a defendant regarding the appellate waiver during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However,
this court will refuse to enforce an otherwise valid waiver if
enforcing the waiver would result in a miscarriage of justice.
Id.Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Branch
knowingly and voluntarily waived the right to appeal his
sentence. In the plea agreement, Branch agreed to waive the
right to appeal “whatever sentence is imposed, including any
issues that relate to the establishment of the advisory
Guidelines range, reserving only the right to appeal from a
sentence in excess of the applicable advisory Guidelines range.”
Because the district court imposed a sentence within the
advisory Guidelines range, the issue Branch seeks to raise on
appeal falls within the scope of his appellate waiver.
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Accordingly, we grant the Government’s motion to dismiss
Branch’s appeal of his sentence.
The waiver provision, however, does not preclude this
court’s review of Branch’s convictions pursuant to Anders.
Prior to accepting a guilty plea, the district court must
conduct a plea colloquy in which it informs the defendant of,
and determines that the defendant understands: the nature of the
charges to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty, and the rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Additionally, the district court must ensure that the
defendant’s plea was voluntary and did not result from force,
threats, or promises not contained in the plea agreement. Fed.
R. Crim. P. 11(b)(2). We find that the district court complied
with Rule 11’s requirements. In accordance with Anders, we have
reviewed the record and have found no meritorious issues for
appeal. We therefore affirm Branch’s convictions.
This court requires that counsel inform Branch, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Branch requests that a
petition be filed, but counsel believes that such petition would
be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
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a copy thereof was served on Branch. 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 IN PART;
DISMISSED IN PART
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