United States v. Woodbury , 181 F. App'x 369 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4630
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JERMAINE R. WOODBURY,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
    (CR-03-501-AW)
    Argued:   March 17, 2006                    Decided:   May 17, 2006
    Before NIEMEYER, LUTTIG,1 and KING, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    ARGUED: Michael Alan Wein, Greenbelt, Maryland, for Appellant.
    Barbara Suzanne Skalla, Assistant United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
    BRIEF: Allen F. Loucks, United States Attorney, Baltimore, Maryland,
    Deborah A. Johnston, Assistant United States Attorney, Greenbelt,
    Maryland, for Appellee.
    1
    Judge Luttig heard oral argument in this case but resigned
    from the court prior to the time the decision was filed.       The
    decision is filed by a quorum of the panel pursuant to 
    28 U.S.C. § 46
    (d).
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    -2-
    PER CURIAM:
    Jermaine     R.   Woodbury     pleaded   guilty,    pursuant    to    a   plea
    agreement, to distribution of 50 grams or more of cocaine base
    (crack), in violation of 
    21 U.S.C. § 841
    (a), and the district court
    sentenced   him   as   a   career    offender   to   a   term   of   151   months
    imprisonment.2    The court also imposed an alternative discretionary
    sentence of 151 months imprisonment under 
    18 U.S.C. § 3553
    (a),
    taking the Sentencing Guidelines as advisory.             Under the terms of
    his plea agreement, Woodbury waived his right to “appeal whatever
    sentence was imposed, including any issues that relate to the
    establishment of the guideline range, reserving only the right to
    appeal from an upward or downward departure from the guideline range
    that is established at sentencing.”           He also reserved the right to
    appeal a sentence that exceeded the maximum term provided by
    statute.
    Despite the waiver, Woodbury now seeks to appeal his career
    offender status, arguing that the waiver is not enforceable in light
    of the Supreme Court’s subsequent decision in Shepard v. United
    States, 
    544 U.S. 13
     (2005) (holding that Apprendi3 exception for
    fact of a prior conviction limits sentencing court to charging
    2
    The district court departed downward from the Sentencing
    Guidelines range of 262-327 months under U.S.S.G. § 4A1.3, p.s.
    (2003) (departure for overstated criminal history), and U.S.S.G. §
    5K1.1, p.s. (departure for substantial assistance).
    3
    Apprendi v. New Jersey, 
    530 U.S. 466
    , 490 (2000).
    -3-
    document, plea agreement and colloquy, statutory definition, or
    defendant’s admissions to determine a disputed fact about a prior
    conviction).   We dismiss the appeal.
    We review the validity of a waiver de novo, United States v.
    Brown, 
    232 F.3d 399
    , 403 (4th Cir. 2000), and will uphold a waiver
    of appellate rights if the waiver is valid and the issue being
    appealed is within the scope of the waiver. United States v. Attar,
    
    38 F.3d 727
    , 731-33 (4th Cir. 1994).          A waiver is valid if the
    defendant’s agreement to the waiver was knowing and voluntary.
    United States v. Marin, 
    961 F.2d 493
    , 496 (4th Cir. 1992); United
    States v. Wessells, 
    936 F.2d 165
    , 167 (4th Cir. 1991).            Generally,
    if the district court fully questions a defendant regarding the
    waiver of his right to appeal during the colloquy under Federal Rule
    of Criminal Procedure 11, the waiver is both valid and enforceable.
    Wessells, 
    936 F.2d at 167-68
    .      In United States v. Blick, 
    408 F.3d 162
       (4th   Cir.   2005),   a   case    involving   a   waiver   virtually
    indistinguishable from the waiver in this case, we held that a
    waiver of the right to appeal contained in a plea agreement that was
    accepted before the Supreme Court’s decision in United States v.
    Booker, 
    543 U.S. 220
     (2005), was not invalidated by the change in
    the law effected by Booker because the waiver was valid and the
    issue raised was within the scope of the waiver.          Blick, 
    408 F.3d at 172-73
    .
    -4-
    Here, the record reveals that the district court conducted a
    thorough Rule 11 inquiry and specifically questioned Woodbury about
    whether he understood that he was waiving his appellate rights.
    Despite Woodbury’s limited education and intellectual ability, the
    record reveals that he was able to understand the consequences of
    the waiver.    We conclude that the waiver is valid.
    Woodbury contends that his waiver of appeal rights is not
    enforceable, first, because he did not agree to a sentence that he
    views, post-Shepard, as an incorrect, unconstitutional, and illegal
    application of the Sentencing Guidelines and the “Career Offender
    Statute.”4    He also contends that certain provisions of his plea
    agreement     preclude   a    valid   waiver   of   the   district   court’s
    determination that he is a career offender.           Finally, he contends
    that the waiver does not preclude a challenge to his sentence on
    constitutional grounds, citing Attar, 
    38 F.3d at 732
    .
    Woodbury’s arguments are foreclosed by Blick, which rejected
    the defendant’s claim that he could not have knowingly waived his
    rights under Booker before it was decided.          Blick, 
    408 F.3d at
    170-
    71.   Like the defendant in Blick, Woodbury was sentenced under the
    pre-Booker and pre-Shepard guidelines, exactly as contemplated in
    his plea agreement.          Blick, 
    408 F.3d at 172-73
    .       In Blick, we
    4
    Woodbury is referring to 
    28 U.S.C. § 994
    (h), which directs
    the Sentencing Commission to assure that the guidelines specify a
    sentence at or near the maximum authorized prison term for adults
    who commit a third felony drug offense or violent crime.
    -5-
    distinguished the defendant’s situation from the one presented in
    Attar and United States v. Broughton-Jones, 
    71 F.3d 1143
     (4th Cir.
    1995), where “the errors allegedly committed by the district courts
    were    errors   that   the   defendants   could   not   have   reasonably
    contemplated when the plea agreements were executed.”           Blick, 
    408 F.3d at 172
    .
    Woodbury agreed to forego his right to appeal the district
    court’s determination of his career offender status, agreed to give
    up his right to appeal “whatever sentence is imposed, including any
    issues that relate to the establishment of the guideline range,” and
    reserved only the right to appeal a departure or a sentence that
    exceeded the statutory maximum.     Woodbury’s claim that the district
    court erred in sentencing him as a career offender falls squarely
    within the scope of his waiver.
    Accordingly, we dismiss the appeal.
    DISMISSED
    -6-