United States v. Carter , 267 F. App'x 203 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4442
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRELL WATSON CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:05-cr-00015-NKM-1)
Submitted: January 17, 2008 Decided: January 22, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sidney H. Kirstein, Lynchburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerrell Watson Carter pled guilty to possession with
intent to distribute 50 grams or more of cocaine base, in violation
of 21 U.S.C. § 841 (2000), and aiding and abetting the use of a
firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c) (2000). On appeal, Carter claims that the
Government’s proffer at the Fed. R. Crim. P. 11 hearing was
insufficient to support the firearm conviction and that the
district court incorrectly calculated his criminal history
category. The Government asserts the appeal should be dismissed
because Carter knowingly and voluntarily waived his right to
appeal. Because we find the appeal waiver was knowing and
voluntary and that the issues raised by Carter are within the scope
of the waiver, we dismiss the appeal.
Carter’s plea agreement contained an appellate waiver
that stated he waived the right to appeal “any and all issues
related to [his] guilty plea and sentencing.” The record reveals
that Carter agreed to this waiver knowingly and voluntarily.* See
United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).
*
Although the district court failed to question Carter at the
Rule 11 hearing about the appellate waiver in violation of Fed. R.
Civ. P. 11(b)(N), because Carter does not assert that he was
unaware of the waiver or that the district court’s failure affected
the outcome of his guilty plea, he cannot establish plain error.
See United States v. General, 278 F.3d 389, 400 n.5 (4th Cir. 2002)
(holding that the district court’s failure to strictly comply with
Rule 11 is subject to plain error review).
- 2 -
Moreover, Carter does not dispute that the issues he raises on
appeal fall within the purview of his appellate waiver. See id. at
169-70.
Accordingly, we dismiss Carter’s appeal. 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
- 3 -