United States v. Alfonso Carney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFONSO CARNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:13-cr-00232-REP-1)
Submitted: November 20, 2014 Decided: November 24, 2014
Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Paul G. Gill, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Stephen Wiley Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfonzo Carney appeals his convictions and 115-month
sentence imposed following his guilty plea to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012), and
distribution and possession with intent to distribute cocaine
base, 21 U.S.C. § 841 (2012). On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal but
questioning whether the magistrate judge adequately complied
with Fed. R. Crim. P. 11 in conducting the plea colloquy. The
Government has moved to dismiss the appeal, citing Carney’s
waiver of appeal rights in his plea agreement. Carney was
informed of his right to file a pro se supplemental brief but
has not done so. For the reasons that follow, we affirm in part
and dismiss in part.
We review de novo the validity of an appeal waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013). “We generally will enforce a
waiver . . . if the record establishes that the waiver is valid
and that the issue being appealed is within the scope of the
waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012) (internal quotation marks and alteration omitted). A
defendant’s waiver is valid if he agreed to it “knowingly and
intelligently.” United States v. Manigan, 592 F.3d 621, 627
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(4th Cir. 2010). Our review of the record leads us to conclude
that Carney knowingly and voluntarily waived the right to appeal
any sentence within the statutory maximum. Because the district
court imposed a sentence below the statutory maximum on both
counts, we grant in part the Government’s motion to dismiss and
dismiss the appeal of Carney’s sentence.
Although Carney agreed to waive his right to appeal
his convictions in his plea agreement, a defendant’s waiver of
appellate rights in any event cannot foreclose a colorable
constitutional challenge to the voluntariness of the guilty
plea. See, e.g., United States v. Attar, 38 F.3d 727, 732–33 &
n.2 (4th Cir. 1994). Here, Carney challenges the validity of
his guilty plea. Before accepting a guilty plea, the district
court must conduct a plea colloquy in which it informs the
defendant of, and determines that the defendant comprehends, the
nature of the charge to which he is pleading guilty, the maximum
possible penalty he faces, any mandatory minimum penalty, and
the rights he is relinquishing by pleading guilty. Fed. R.
Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991). The court also must ensure that the plea is
voluntary, supported by an independent factual basis, and not
the result of force, threats, or promises outside the plea
agreement. Fed. R. Crim. P. 11(b)(2), (3).
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Because Carney did not assert in the district court
any error in the plea proceedings, we review the adequacy of his
plea colloquy for plain error. United States v. Massenburg, 564
F.3d 337, 342 (4th Cir. 2009). To establish plain error, Carney
must demonstrate that (1) the district court erred, (2) the
error was plain, and (3) the error affected his substantial
rights. Henderson v. United States, 133 S. Ct. 1121, 1126
(2013). In the guilty plea context, an error affects a
defendant’s substantial rights if he demonstrates a reasonable
probability that he would not have pled guilty but for the
error. Massenburg, 564 F.3d at 343. Even if these requirements
are met, we will “exercise our discretion to correct the error
only if it seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v.
Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation
marks omitted).
Our review of the record reveals that the magistrate
judge substantially complied with the requirements of Rule 11 in
conducting the plea colloquy. * While the record discloses that
the magistrate judge did not expressly ask Carney whether he had
been forced or threatened into pleading guilty, see Fed. R.
*
Carney consented to having a magistrate judge preside over
the Rule 11 proceedings.
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Crim. P. 11(b)(2), we are satisfied that any error did not
affect Carney’s substantial rights. See Massenburg, 564 F.3d at
343. The magistrate judge otherwise complied with the
requirements of Rule 11, ensuring that the plea was knowing,
voluntary, and supported by a factual basis. We therefore find
the plea valid and enforceable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Carney’s convictions and dismiss the appeal
as to his sentence. This court requires that counsel inform
Carney, in writing, of the right to petition the Supreme Court
of the United States for further review. If Carney 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 Carney. 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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