United States v. Edeogochineme Agbugba

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4704
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDEOGOCHINEME AGBUGBA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cr-00493-RDB-1)
Submitted: June 3, 2016 Decided: June 22, 2016
Before KING, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant. Christopher John Romano, Matthew Corey
Sullivan, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edeogochineme Agbugba appeals his conviction and 36-month
sentence based upon his Fed. R. Crim. P. 11(c) guilty plea to
conspiracy to distribute heroin. On appeal, counsel has filed
an Anders v. California, 386 U.S. 738 (1967) brief, finding no
meritorious issues for appeal but questioning whether Agbugba’s
plea was valid and whether his sentence was unreasonable. The
Government filed a motion to dismiss based upon Agbugba’s appeal
waiver contained in his plea agreement. In response, Agbugba
asserted that his appellate waiver was not voluntary due to his
status as a non-native English speaker, his lack of education,
and his lack of criminal history. Although informed of his
right to do so, Agbugba has not filed a pro se supplemental
brief. We dismiss in part and affirm in part.
A defendant may, in a valid plea agreement, waive the right
to appeal under 18 U.S.C. § 3742 (2012). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review 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 only if the defendant
knowingly and intelligently agreed to the waiver. Id. at 169.
To determine whether a waiver is knowing and intelligent, we
examine the background, experience, and conduct of the
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defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995); United States v. Davis, 954 F.2d 182, 186 (4th
Cir. 1992). Generally, if the district court fully questions a
defendant regarding the waiver during the Rule 11 plea colloquy,
the waiver is both valid and enforceable. United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). Ultimately,
however, the issue is “evaluated by reference to the totality of
the circumstances.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). “An appeal waiver is not knowingly or
voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision . . .
during the Rule 11 colloquy and the record indicates that the
defendant did not otherwise understand the full significance of
the waiver.” United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005) (internal quotation marks omitted).
In his plea agreement, Agbugba waived his right to appeal
both his conviction and sentence. In response to the court’s
questions, Agbugba testified at his Fed. R. Crim. P. 11 hearing
that he was aware that he was waiving his right to appeal the
agreed-upon 36-month sentence. However, the court did not
question Agbugba regarding his waiver of his right to appeal his
conviction.
We find that the totality of the circumstances weighs in
favor of concluding that Agbugba only knowingly and
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intelligently waived his right to appeal his sentence. Thus, we
determine that the waiver is only valid and enforceable with
regard to Agbugba’s sentence. As such, we grant the motion to
dismiss in part and dismiss Agbugba’s challenge to his sentence.
However, we deny the motion to dismiss with regard to Agbugba’s
challenge to his conviction, and we thus examine this issue on
the merits.
In the Anders brief, counsel challenges the voluntariness
of the plea but does not point to any specific defect in the
Rule 11 hearing or any other reason to conclude that the plea
itself (as opposed to the waiver) was involuntary. A guilty
plea must be “a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). To meet the
“intelligent choice” requirement, a defendant must be advised of
all the direct and collateral consequences of his plea, Cuthrell
v. Director, Patuxent Inst., 475 F.2d 1364, 1365-66 (4th Cir.
1973), including the length of the maximum sentence or any
mandatory minimum sentence which may be imposed. Manley v.
United States, 588 F.2d 79, 81 (4th Cir. 1978). Statements made
at a plea hearing that facially demonstrate a plea’s validity
are conclusive absent a compelling reason why they should not
be, such as ineffective assistance of counsel. Via v.
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Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171
(4th Cir. 1981).
The Rule 11 colloquy demonstrates that Agbugba’s guilty
plea was knowingly and voluntarily made. In accordance with
Anders, we have reviewed the entire record in this case for
unwaived, meritorious issues and have found none. Accordingly,
we dismiss Agbugba’s appeal of his sentence and affirm his
conviction. This court requires that counsel inform her client,
in writing, of his right to petition the Supreme Court of the
United States for further review. If the client 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 the client. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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