United States v. Andrew Wayne Landells , 628 F. App'x 177 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4886
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDREW WAYNE LANDELLS, a/k/a Herbert Hill, a/k/a John
Watson, a/k/a John Lee, a/k/a Michael Munoz, a/k/a Mark
Sierra,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:13-cr-00040-D-1)
Submitted: September 29, 2015 Decided: October 9, 2015
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Scott L. Wilkinson, SCOTT L. WILKINSON & ASSOCIATES, P.C.,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In a written plea agreement, Andrew Wayne Landells pled
guilty to conspiracy to conduct financial transactions involving
the proceeds of specified unlawful activity, in violation of 18
U.S.C. § 1956(a)(1)(B)(i), (h) (2012). The district court
imposed a 180-month sentence. Landells’ attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), stating that, in counsel’s view, there are no
meritorious issues for appeal, but questioning whether the
Government breached the plea agreement, and whether the district
court erred in enhancing Landells’ sentence for possession of a
firearm. Landells filed a pro se supplemental brief also
challenging the firearm enhancement to his sentence. The
Government has moved to dismiss the appeal based on Landells’
waiver in the plea agreement of his right to appeal his
sentence. We grant the Government’s motion to dismiss the
appeal in part, and we affirm the district court’s judgment.
“Plea bargains rest on contractual principles, and each
party should receive the benefit of its bargain.” United
States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (citation and
internal quotations omitted). “A defendant may waive the right
to appeal his conviction and sentence so long as the waiver is
knowing and voluntary.” United States v. Davis, 689 F.3d 349,
354 (4th Cir. 2012) (citing United States v. Marin, 961 F.2d
2
493, 496 (4th Cir. 1992)). We review the validity of an appeal
waiver de novo, and we “will enforce the waiver if it is valid
and the issue appealed is within the scope of the waiver.” Id.at 354-55 (citing Blick, 408 F.3d at 168).
We have reviewed the plea agreement and the Fed. R. Crim.
P. 11 hearing, and we conclude that Landells’ appeal waiver was
knowing and voluntary. On appeal, Landells contends that the
Government breached the plea agreement at sentencing by not
supporting its recommendation of a three-level enhancement for
Landells’ role in the offense, rather than the four-level
enhancement recommended in the presentence report. Landells
asserts that this issue falls outside the scope of the waiver.
“A defendant’s waiver of appellate rights cannot foreclose
an argument that the government breached the plea agreement.”
United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009)
(citing United States v. Cohen, 459 F.3d 490, 495 (4th Cir.
2006)). Moreover, “we will not enforce an otherwise valid
appeal waiver against a defendant if the government breached the
plea agreement containing that waiver.” Cohen, 459 F.3d at 495
(citing Blick, 408 F.3d at 168); see also United States v.
Lewis, 633 F.3d 262, 271 n.8 (4th Cir. 2011) (citing Dawson, 587
F.3d at 644 n.4; Cohen, 459 F.3d at 495). However, where a
defendant alleges a breach by the Government but “the record in
[the] case does not support [the defendant’s] claim,” we “will
3
not invalidate [the defendant’s] appeal waiver based on [the
unsupported] allegations.” Cohen, 459 F.3d at 495.
Based on our review of the record, we conclude that
Landells’ claim that the Government breached the plea agreement
by not supporting its recommendation of a three-level
enhancement for Landells’ role in the offense is not supported
by the record. The plea agreement provided that the Government
agreed to a three-level enhancement; it did not require the
Government to argue in support of the position or to
“enthusiastically” recommend the three-level enhancement. See
United States v. Benchimol, 471 U.S. 453, 455 (1985) (holding
that there is no requirement for the Government to
“enthusiastically” make a certain recommendation or to provide
reasons for a recommendation, absent an agreement to do so).
Moreover, we conclude that Landells’ guilty plea and his appeal
waiver are valid and enforceable. Accordingly, we affirm
Landells’ conviction.
Landells’ other issue raised on appeal — that the district
court erred in enhancing his sentence for possession of a
firearm — falls within the scope of the waiver. We therefore
dismiss the appeal as to that claim. In accordance with Anders,
we have reviewed the record for any potentially meritorious
issues that might fall outside the scope of the waiver and have
found none.
4
Accordingly, we grant the Government’s motion to dismiss
the appeal in part, and affirm the district court’s judgment.
This court requires that counsel inform Landells, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Landells 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 Landells. 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
5