United States v. Alston , 174 F. App'x 793 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEE ANDREW ALSTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-315; CR-04-316)
Submitted: March 8, 2006 Decided: April 10, 2006
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Danielle Bess Obiorah, LAW OFFICES OF DANIELLE BESS OBIORAH, P.C.,
Charlotte, North Carolina, for Appellant. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lee Andrew Alston, Jr., pled guilty to two counts of
armed bank robbery, 18 U.S.C. § 2113(d) (2000), and one count of
carrying and using, by brandishing, a firearm during and in
relation to a crime of violence, 18 U.S.C.A. § 924(c)(1)(A) (West
2000 & Supp. 2005). Alston was sentenced to seventy-eight months
in prison for the robberies. The sentences run concurrently. He
also was sentenced to a consecutive sentence of eighty-four months
for the firearm offense. Alston’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising one
issue but stating that, in her opinion, Alston validly waived his
appellate rights and there are no meritorious issues for appeal.
Alston was advised of his right to file a pro se informal brief,
but did not file such a brief. The United States argues on appeal
that this court must enforce the waiver-of-appellate rights
provision in Alston’s plea agreement. We agree and dismiss the
appeal.
I
Alston’s written plea agreement contained the following
provision:
It is further agreed . . . that in exchange for the
government’s agreement to dismiss the remaining counts of
the Indictments . . ., the defendant expressly waives the
right to appeal whatever sentence is imposed on any
ground, including any appeal right conferred by Title 18,
United States Code, Section 3742(a) . . ., excepting the
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defendant’s right to appeal based upon grounds of
ineffective assistance of counsel or prosecutorial
misconduct not known to the defendant at the time of the
defendant’s guilty plea.
The plea agreement set forth the minimum and maximum sentence that
Alston faced and made clear that the sentencing guidelines applied.
Alston, through counsel, admitted that he was guilty of the
offenses to which he was pleading guilty.
At his Fed. R. Crim. P. 11 hearing, the district court
ascertained that Alston was thirty-one years old and a high school
graduate. Alston was not under the influence of drugs or alcohol.
The court identified the rights that Alston waived by going to
trial, and specifically mentioned the right to appeal. The court
stated:
Now part of . . . your plea agreement[] includes a
limited right of appeal. . . . In exchange for the
government dismissing other counts of [the] indictment[],
. . . you give up your right to appeal whatever sentence
is imposed, except upon four grounds: ineffective
assistance of counsel, misconduct by the prosecution, not
known to you at the time of your guilty plea; any
sentence in excess of the statutory maximum, or any
sentence based on an unconstitutional factor.
Alston informed the court that he understood this waiver. The
district court concluded that the plea was voluntary and
intelligent and that there was a factual basis for the plea. The
court accordingly found Alston guilty of the robberies and the
firearm offense.
Alston’s presentence report (psr) calculated a total
offense level of 26 for the robberies. Alston’s criminal history
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category was III, for a guideline range of 78-97 months. The psr
also stated that Alston was statutorily subject to a consecutive
sentence of at least seven years for the firearm offense. Alston
objected to the psr, claiming that both the offense level and
criminal history category were incorrectly calculated.
The district court overruled both objections at
sentencing. The court observed that the guidelines were advisory
and stated that it had considered “all of the factors that the
Court considers in determining a reasonable sentence.” Alston was
sentenced to seventy-eight months in prison for each robbery; those
sentences run concurrently. He also was sentenced to a consecutive
seven-year sentence for the firearm offense.
II
In the Anders brief, counsel contends that the district
court erred when it imposed a sentence under the mandatory
guidelines scheme. However, counsel concedes that there are no
meritorious issues for appeal. The Government replies that Alston
waived his right to appeal.
This case is governed by our recent decision in United
States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick
was whether a waiver-of-appellate rights provision in a plea
agreement was enforceable after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005). We employed a two-
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part analysis to decide the issue. First, we considered whether
the waiver was knowing and voluntary. Having decided that it was,
we asked whether the issues raised on appeal were within the scope
of that waiver. They were, and the appeal was subject to
dismissal. Blick, 408 F.3d at 169-73.
This court reviews de novo the validity of a waiver.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether
a waiver of the right to appeal is knowing and intelligent depends
upon the facts and circumstances surrounding its making, including
the defendant’s background, experience, and conduct. United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is
ineffective if the district court fails to question the defendant
about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.
1991), unless other evidence in the record shows that the waiver
was informed and voluntary. Davis, 954 F.2d at 186.
Here, Alston’s waiver was clearly knowing and voluntary.
He was thirty-one, a high school graduate, and not under the
influence of drugs or alcohol when he entered his plea. The
district judge questioned him about the waiver of his appellate
rights, and Alston stated that he understood this waiver. The
details of the waiver were clearly set forth in the written plea
agreement, which Alston signed after consultation with his lawyer.
In his plea agreement, Alston waived the right to appeal
his sentence, reserving the right to appeal a limited number of
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issues. Here, he contends that the district court erred in
treating the guidelines as mandatory. This is an issue that lies
within the scope of the appellate waiver and, under Blick, the
matter is not reviewable on appeal.
As required by Anders, we have reviewed the entire record
on appeal and have found no meritorious issues for appeal. We
therefore dismiss the appeal. The court requires that counsel
inform her 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 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.
DISMISSED
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