United States v. Cyrus

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4640
CLARENCE EDWARD CYRUS, a/k/a
Red, a/k/a CC,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-221)
Submitted: October 30, 2002
Decided: February 11, 2003
Before WIDENER, WILKINS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
Decatur, Georgia, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Mark C. Moore, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
2 UNITED STATES v. CYRUS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Clarence Edward Cyrus appeals his convictions for distribution of
cocaine base and conspiracy to distribute cocaine and cocaine base in
violation of 21 U.S.C. §§ 841, 846 (2000). Cyrus claims that the dis-
trict court erred by accepting his guilty plea because it was not know-
ingly made in accordance with Fed. R. Crim. P. 11. He also claims
that the district court erred in its application of the sentencing guide-
lines.1
Cyrus claims that the district court’s acceptance of his plea prior
to the completion of the presentence investigation report ("PSR") ren-
dered it impossible for him to enter a knowing and intelligent plea.2
He also claims that given his state of malingering, it was a virtual cer-
tainty that he would face an enhanced sentence for obstruction of jus-
tice, and would not receive credit for acceptance of responsibility. See
USSG §§ 3C1.1, 3E1.1(a). We disagree. As late as June 5, 2001, the
Assistant United States Attorney was willing to honor the stipulations
in the plea agreement despite Cyrus’ ongoing efforts at obstructing
the judicial process. Moreover, like the district court, we conclude
that the determination of whether Cyrus received the benefit of the
bargain contained in the plea agreement ultimately fell on Cyrus and
his decision not to cooperate with the Government. Accordingly, we
1
U.S. Sentencing Guidelines Manual (2000).
2
In support of this proposition, Cyrus cites to United States v. Alvarez-
Quiroga, 901 F.2d 1433 (7th Cir. 1990). Although Alvarez-Quiroga does
not stand for this proposition, we do note that the Seventh Circuit sug-
gested similar reasoning in United States v. Salva, 902 F.2d 483 (7th Cir.
1990). We assume this to be the case upon which Cyrus relies. To the
extent that Cyrus asks us to accept Salva, we have previously declined
to do so, see United States v. DeFusco, 949 F.2d 114, 118-19 (4th Cir.
1991), and we find no reason to depart from our previous ruling.
UNITED STATES v. CYRUS 3
do not accept Cyrus’ contention that the stipulations as laid out in the
plea agreement were an unobtainable sham.
We likewise reject Cyrus’ claim that Fed. R. Crim. P. 11 necessar-
ily requires the district court to review the PSR and the sentencing
guidelines prior to acceptance of the plea. Rule 11 requires the district
court to inform the defendant of the applicable mandatory minimum
and maximum sentences relevant to his case, as well as the require-
ment that the court consider the sentencing guidelines. Fed. R. Crim.
P. 11(c)(1). Any attempt to read further into the rule, such as Cyrus
suggests, is not supported in the plain language of the rule or any con-
trolling caselaw. Accordingly, we reject this claim. See United States
v. DeFusco, 949 F.2d 114, 118-19 (4th Cir. 1991).
Because we conclude that Cyrus’ plea was knowingly, voluntarily,
and intelligently made, it follows that the waiver of his appellate
rights contained in the plea agreement is effective. See United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). This waiver precludes
review of his two remaining claims regarding the application of the
sentencing guidelines.
Accordingly, we affirm the judgment of the district court.3 We dis-
pense 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
3
Regarding Cyrus’ request to file a responsive brief regarding the six-
teen video-cassettes filed as a supplemental appendix by the Govern-
ment, because we have not relied on the tapes in our disposition of the
matter, we deny this request.