United States v. Dwayne Terry , 606 F. App'x 712 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE DENARD TERRY, a/k/a Dee, a/k/a Fakin Jamaican,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-02054-RBH-2)
Submitted: March 30, 2015 Decided: April 10, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
W. James Hoffmeyer, LAW OFFICE OF W. JAMES HOFFMEYER, Florence,
South Carolina, for Appellant. Nancy Chastain Wicker, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Denard Terry pled guilty pursuant to a written plea
agreement to one count of conspiracy to possess with intent to
distribute and to distribute 5 kilograms or more of powder
cocaine, 280 grams or more of crack cocaine, and 100 kilograms
or more of marijuana, in violation of 21 U.S.C. § 846 (2012).
Terry and the Government negotiated a Fed. R. Crim. P.
11(c)(1)(C) agreement, stipulating that a 240-month sentence
would be appropriate. The district court accepted the plea and
imposed the stipulated sentence. In accordance with Anders v.
California, 386 U.S. 738 (1967), Terry’s counsel has filed a
brief certifying that there are no meritorious issues for
appeal, but questioning the validity of Terry’s guilty plea.
Although notified of his right to do so, Terry has not filed a
supplemental brief. We affirm.
Terry challenges his plea on the ground that the district
court did not take special care to assure that his plea was
knowing and voluntary, where his plea agreement was linked to
that of his codefendant. A guilty plea is valid where the
defendant voluntarily, knowingly, and intelligently pleads
guilty “with sufficient awareness of the relevant circumstances
and likely consequences.” Brady v. United States, 397 U.S. 742,
748 (1970). To assure that this standard is satisfied, Fed. R.
Crim. P. 11 requires a district court to “inform the defendant
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of, and determine that he understands, the nature of the
charge(s) to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty and various rights.”
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). An
appropriately conducted Rule 11 proceeding raises “a strong
presumption that the plea is final and binding.” United
States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003) (internal
quotation marks omitted). Here, the district court’s
substantial compliance with the requirements of Fed. R. Crim. P.
11 raises this presumption in favor of the validity of Terry’s
plea.
The promise of leniency to a third party in a plea
agreement, although a legitimate prosecutorial tool that does
not render a plea per se invalid, “might pose a greater danger
of inducing a false guilty plea by skewing the assessment of the
risks a defendant must consider.” United States v. Morrow, 914
F.2d 608, 613 (4th Cir. 1990) (internal quotation marks
omitted); see also Harman v. Mohn, 683 F.2d 834, 838 (4th Cir.
1982). Accordingly, “[s]pecial care must be taken to determine
the voluntariness” of such a plea. Morrow, 914 F.2d at 613.
Here, the Government acted in good faith by securing an
indictment against both defendants before initiating plea
negotiations and by informing the district court that Terry’s
and his codefendant’s plea agreements were linked together. See
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Harman, 683 F.2d at 837 (prosecutor negotiated in good faith
where he secured indictment against third party before offering
leniency); Morrow, 914 F.2d at 613 (questioning validity of plea
where Government did not inform district court of promise of
leniency to third party). Furthermore, Terry and his
codefendant were represented by different attorneys, eliminating
the possibility that Terry’s attorney sacrificed his bargaining
position to secure a plea agreement for the codefendant. See
Harman, 683 F.2d at 837-38 (underscoring importance of separate
counsel where plea involves promise of leniency to third party).
Finally, Terry readily admitted guilt at the plea hearing and
did not raise any issue regarding the validity of his plea when
the district court formally accepted the plea at sentencing, a
time when Terry was in the courtroom outside the presence of his
codefendant. Accordingly, the record does not support the claim
that Terry’s plea was involuntary or unknowing.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Terry’s conviction and the term of supervised
release imposed by the district court. We dismiss Terry’s
appeal as to his sentence of imprisonment. See 18 U.S.C.
§ 3742(a), (c) (2012); United States v. Calderon, 428 F.3d 928,
932 (10th Cir. 2005) (sentence imposed in accordance with Fed.
R. Crim. P. 11(c)(1)(C) plea agreement and statute governing
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offense of conviction not subject to appellate review). This
court requires that counsel inform Terry, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Terry 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 Terry.
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
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