United States v. Myrie , 363 F. App'x 278 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4544
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NELSON OMAR MYRIE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00498-HEH-1)
Submitted: December 22, 2009 Decided: January 29, 2010
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach,
Virginia, for Appellant. Angela Mastandrea-Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nelson Omar Myrie pled guilty, pursuant to a plea
agreement, to conspiracy to distribute and possess with intent
to distribute fifty grams or more of cocaine base and possession
with intent to distribute fifty grams or more of cocaine base,
both in violation of 21 U.S.C. § 841(a) (2006). He was
sentenced to 126 months’ imprisonment on each count, to be
served concurrently. Myrie’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending there are
no meritorious issues for appeal, but questioning whether the
district court erred in denying Myrie’s motion to dismiss his
indictment or abused its discretion in denying his motion to
withdraw his guilty plea. Myrie was advised of his right to
file a pro se supplemental brief but did not do so. The
Government has moved to dismiss, asserting that Myrie’s appeal
is precluded by the appeal waiver contained in Myrie’s plea
agreement. We affirm in part and dismiss in part.
Whether a defendant effectively waived his right to
appeal pursuant to a plea bargain is an issue of law that is
reviewed de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). Where the government seeks to enforce an
appeal waiver and the appellant does not contend that the
government is in breach of its plea agreement, a waiver will be
enforced if the record shows the waiver is valid and the
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challenged issue falls within the scope of the waiver. Id. An
appeal waiver is valid if it is “the result of a knowing and
intelligent decision to forgo the right to appeal.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citations omitted). To decide
whether a defendant’s waiver results from a knowing and
intelligent decision, we examine “‘the particular facts and
circumstances surrounding that case, including the background,
experience and conduct of the accused.’” United States v.
Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). Generally, if the district
court fully questions a defendant at his Fed. R. Crim. P. 11
proceeding regarding the waiver of his right to appeal, the
waiver is both valid and enforceable. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). An appeal waiver
does not preclude challenges to a sentence on the ground that it
exceeds the statutory maximum or is based on a constitutionally
impermissible factor like race, or claims concerning a violation
of the Sixth Amendment right to counsel in proceedings following
the guilty plea. Id. Moreover, a defendant’s waiver of
appellate rights cannot foreclose a colorable constitutional
challenge to the voluntariness of the guilty plea. See United
States v. Attar, 38 F.3d 727, 732-33 n.2 (4th Cir. 1994).
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Here, we find that Myrie’s waiver of his right to
appeal was knowingly and validly entered, and neither Myrie nor
his counsel contends otherwise. The district court engaged the
defendant in a thorough plea colloquy, verifying, inter alia,
that Myrie understood the proceedings, was not under the
influence of any drugs, alcohol, or medications, was satisfied
with his attorneys’ performances, and was actually guilty of the
crimes to which he desired to plead guilty. The district court
explained to Myrie the rights he was giving up by pleading
guilty, specifically articulating that Myrie was waiving his
right to appeal. Accordingly, as Myrie was fully questioned
during his Rule 11 colloquy regarding his waiver, we find that
the waiver is both valid and enforceable as to all issues within
its scope. Additionally, because the first issue raised on
appeal — whether the district court erred in denying Myrie’s
motion to dismiss the indictment — clearly falls within the
scope of Myrie’s appeal waiver, this issue is barred on appeal.
Accordingly, we grant the Government’s motion to dismiss with
regard to this issue.
In the second issue on appeal, Myrie contends that the
district court abused its discretion in denying his motion to
withdraw his guilty plea, because his attorneys’ ineffective
assistance rendered the guilty plea involuntary. Because this
challenge implicates both the voluntary nature of the guilty
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plea and Myrie’s Sixth Amendment right to counsel, it is not
barred by the plea agreement. Therefore, we deny the
Government’s motion to dismiss as to this issue.
Nevertheless, we find this challenge to be without
merit. We review a denial of a motion to withdraw a guilty plea
for an abuse of discretion. United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000). A defendant bears the burden of
demonstrating to the district court’s satisfaction that a “fair
and just reason” supports his request to withdraw. Fed. R.
Crim. P. 11(h). In determining whether the trial court abused
its discretion in denying a motion to withdraw a guilty plea, we
consider six factors:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
Ubakanma, 215 F.3d at 424 (as articulated in United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991)). Although each Moore
factor must be given appropriate weight, the key in determining
whether a motion to withdraw should be granted is whether the
plea hearing was properly conducted under Rule 11. United
States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). We
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closely scrutinize the Rule 11 colloquy and attach a strong
presumption that the plea is final and binding if the Rule 11
proceeding is adequate. Id.As explained above, the district court properly
conducted a thorough plea colloquy in accord with Rule 11.
Therefore, we apply a strong presumption that Myrie’s plea was
final and binding. Additionally, Myrie has offered no evidence
that his plea was not knowing or voluntary, Myrie enjoyed the
close assistance of two attorneys during all phases of the
proceedings, and Myrie has not credibly asserted his legal
innocence, as he admitted during his plea colloquy that he
committed the crimes he was charged with. Therefore, we find
that the district court did not abuse its discretion in denying
Myrie’s motion to withdraw his guilty plea.
As required by Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment to the extent
that the court denied Myrie’s motion to withdraw his guilty
plea. The remainder of Myrie’s appeal is dismissed. This court
requires that counsel inform his 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
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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 the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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