United States v. Newby

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4349
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES NEWBY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina at Raleigh. James C. Fox, Senior
District Judge. (5:08-cr-00252-F-1)
Submitted: January 25, 2010 Decided: February 16, 2010
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Newby seeks to appeal his conviction, after
pleading guilty pursuant to a written plea agreement, on one
count of conspiracy to distribute and possession with intent to
distribute 50 grams or more of crack cocaine, in violation of
21 U.S.C. § 846 (2006), and the resulting 172-month sentence.
On appeal, Newby claims his plea was not knowing because he
never admitted to distribution of more than 14.8 grams of
cocaine base.
The Government has moved to dismiss the appeal,
asserting that it is barred by Newby’s appellate waiver in the
validly entered plea agreement. Newby has responded that the
motion to dismiss should be denied based on the reasons asserted
in his opening brief.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent and the issue on which the
defendant seeks to appeal is within the scope of the appeal
waiver. United States v. Poindexter, 492 F.3d 263, 270 (4th
Cir. 2007). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
plea colloquy performed in accordance with Rule 11 of the
Federal Rules of Criminal Procedure, the waiver is both valid
and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
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(4th Cir. 1991). The question of whether a defendant validly
waived his right to appeal is a question of law that we review
de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).
Our review of the record leads us to conclude that
Newby knowingly and voluntarily waived the right to appeal any
sentence that was not above the advisory Sentencing Guidelines
range and any issues relating to the establishment of the
Guidelines range. The terms of plea agreement specified that
Newby was pleading guilty to Count One of the Indictment, which
was conspiracy to distribute an amount of 50 grams or more of
cocaine base. Newby signed the plea agreement, stipulating to
the facts underlying his guilty plea.
At the time he entered his plea, Newby was a fifty-six
year old man with an eleventh grade education. During his
sentencing hearing, Newby stated that he had read and discussed
the charges against him, and the applicability of the sentencing
factors, including the sentencing guidelines, with his lawyer.
The district court reviewed the specific terms of Newby’s plea
agreement with him in open court. He stated that he understood
he was waiving his right to appeal his conviction, and his right
to appeal a sentence within or below the specified advisory
guidelines range. Newby specifically stated that he understood
that he was pleading guilty to conspiring with another person to
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intentionally distribute and possess with intent to distribute
50 grams or more of crack cocaine, and that he was, in fact,
guilty of that particular crime. Newby is bound by his
statements made under oath during his plea colloquy. See
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). *
The explicit terms of Newby’s plea agreement, as well
as his statements during his plea colloquy, fully support his
guilt of, and sentencing based upon, involvement with 50 grams
or more of cocaine base. The sentencing issues Newby raises on
appeal fall within the scope of this waiver. We therefore grant
the Government's motion to dismiss the appeal.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
*
Newby cites to United States v. Brooks, 524 F.3d 549 (4th
Cir. 2008), and United States v. Collins, 415 F.3d 304 (4th Cir.
2005), to support his claim that he was sentenced upon an
incorrect amount of crack. Newby fails to acknowledge, however,
the distinguishing facts that he pled guilty to conspiracy of a
particular drug amount, i.e., 50 grams or more of crack, and was
sentenced based upon the attendant guidelines range for that
amount to which he pled. As Newby admits on appeal, “the
Collins principle helps determine the actual crime of
conviction, which sets the statutory minimums and maximums for
sentencing.” Here, the “actual crime of conviction” was set by
Newby’s plea of guilt to Count One, which was conspiracy to
distribute and possess with intent to distribute 50 grams or
more of crack.
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before the court and argument would not aid the decisional
process.
DISMISSED
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