United States v. Isiah Barber

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISIAH JAMEL BARBER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00357-BR-1)
Submitted: November 2, 2012 Decided: November 20, 2012
Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Joseph R. Conte, LAW OFFICES OF J. R. CONTE, P.L.L.C.,
Washington, D.C.; Charles J. Soschin, THE LAW OFFICE OF C.J.
SOSCHIN, Washington, D.C., for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isiah Jamel Barber appeals the 156-month sentence
imposed by the district court following his guilty plea,
pursuant to a written plea agreement, to conspiracy to commit
Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (2006), and
possession of a firearm in furtherance of a crime of violence
and aiding and abetting the same, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2 (2006). On appeal, Barber contends that
the district court incorrectly calculated his advisory
Sentencing Guidelines range and erred in upwardly departing to
criminal history category VI. The Government contends that the
Guidelines calculation issue is barred by the appellate waiver
provision in the plea agreement. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (“If a merits
brief is filed, the government is free to . . . raise the appeal
waiver issue and argue that the appeal should be dismissed based
on the waiver . . . .”). We agree with the Government that the
Guidelines issue is barred by the appellate waiver provision and
dismiss that portion of the appeal. However, we affirm the
district court’s decision to impose an upward departure, an
issue the Government does not contend is within the scope of the
waiver. We also affirm Barber’s convictions.
We review de novo a defendant’s waiver of appellate
rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted); see United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (providing standard). Generally, if the district
court fully questions the defendant about the waiver during the
Federal Rule of Criminal Procedure 11 plea colloquy, the waiver
is valid and enforceable. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). We will enforce a valid waiver so
long as “the issue being appealed is within the scope of the
waiver.” Blick, 408 F.3d at 168.
Our review of the record leads us to conclude that
Barber’s waiver of appellate rights was knowing and intelligent.
Thus, the waiver is valid and enforceable. Turning to the scope
of the waiver, we agree with the Government that the Guidelines
calculation issue raised in Barber’s brief falls within the
scope of the appellate waiver provision. Therefore, we dismiss
this portion of the appeal.
The Government does not assert, however, that the
waiver provision precludes our review of Barber’s contention
that the district court erred in upwardly departing to criminal
history category VI. Accordingly, we review this claim on its
merits. The Sentencing Guidelines permit an upward departure if
3
the district court determines “that the defendant’s criminal
history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S. Sentencing Guidelines
Manual § 4A1.3(a)(1), p.s. (2011). In reviewing a sentence
outside the Guidelines range, “we consider whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). We conclude that the district court’s decision to depart
was reasonable, as was the extent of the departure. Thus, the
district court did not abuse its discretion in imposing an
upward departure sentence. See Gall v. United States, 552 U.S.
38, 51 (2007) (providing standard of review).
Accordingly, while we dismiss Barber’s appeal of the
district court’s Sentencing Guidelines calculation, we affirm
Barber’s convictions and the upward departure 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.
AFFIRMED IN PART;
DISMISSED IN PART
4