United States v. James Terrell, III

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES THOMAS TERRELL, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00172-FDW-1)
Submitted: December 16, 2011 Decided: January 5, 2012
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Thomas Terrell, III pled guilty pursuant to a
written plea agreement under Fed. R. Crim. P. 11(c)(1)(C) to two
counts of conspiracy to distribute and possession with intent to
distribute narcotics, in violation of 21 U.S.C. §§ 841(b)(1)(B),
846 (2006), and two counts of conspiracy to conduct financial
transactions involving the proceeds of unlawful activity, in
violation of 18 U.S.C. § 1956(h) (2006). The district court
accepted the plea agreement and imposed the stipulated sentence
of 156 months’ imprisonment.
On appeal, Terrell’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that there are no meritorious issues for appeal. Terrell filed
a pro se supplemental brief asserting that the district court
erred in calculating the applicable statutory minimum sentence
and that the district court erred in applying a second-degree
murder cross-reference. The Government has elected not to file
a response. We affirm in part and dismiss in part.
Prior to accepting a defendant’s guilty plea, Fed. R.
Crim. P. 11(b)(1) requires the district court to ensure that a
defendant understands his right to plead not guilty, the trial
rights he is forfeiting by pleading guilty, the nature of the
charges, any maximum and minimum penalty, and the provisions of
any plea agreement. Additionally, the district court must find
2
a factual basis for the plea and that the plea is knowing and
voluntary. Fed. R. Crim. P. 11(b)(2)-(3). Because Terrell did
not move to withdraw his guilty plea, the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517 (4th Cir. 2002). After thoroughly reviewing the record in
this case, we conclude that the district court complied with the
mandates of Rule 11 in accepting Terrell’s plea. The record
confirms that there was a factual basis for the plea, that the
plea was knowing and voluntary, and that Terrell understood his
rights and the consequences of the plea agreement. We therefore
affirm Terrell’s conviction.
We lack jurisdiction, however, to review Terrell’s
sentence. This court’s jurisdiction to review a sentence is
governed by 18 U.S.C. § 3742(c)(2006), which limits review of a
sentence determined pursuant to a Rule 11(c)(1)(C) plea
agreement to sentences imposed either in violation of the law or
as a result of an incorrect application of the Sentencing
Guidelines. United States v. Sanchez, 146 F.3d 796, 797 (10th
Cir. 1998); United States v. Littlefield, 105 F.3d 527, 527-28
(9th Cir. 1997). Here, Terrell’s sentence was the exact
sentence negotiated in the plea agreement and was less than the
applicable statutory maximum. It could not have been imposed as
a result on an incorrect application of the Guidelines because
it was a contractual agreement made independently of any
3
Guidelines calculations. United States v. Cieslowski, 410 F.3d
353, 364 (7th Cir. 2005).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Terrell’s conviction and dismiss his appeal
as to his sentence. 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. This court requires that counsel inform
Terrell in writing of the right to petition the Supreme Court of
the United States for further review. If Terrell 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 Terrell.
AFFIRMED IN PART;
DISMISSED IN PART
4