United States v. Stephen Jones , 493 F. App'x 444 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4106
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEPHEN LAROY JONES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cr-00079-AW-1)
Submitted: August 23, 2012 Decided: September 5, 2012
Before WILKINSON, KING, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Jerome M. Maiatico, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; William Moomau, OFFICE
OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Laroy Jones pled guilty, pursuant to a written
plea agreement, to possession of a firearm as a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (2006), and possession
with intent to distribute controlled substances, in violation of
21 U.S.C. § 841(a)(1) (2006). The district court sentenced
Jones to 120 months’ imprisonment for the firearm offense and
130 months’ imprisonment for the controlled substance offense,
to run concurrently. Jones appeals.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
court committed procedural sentencing error. Jones was notified
of his right to file a pro se supplemental brief but declined to
do so. The Government moves to dismiss the appeal in part,
based on the appellate waiver provision in Jones’s plea
agreement. We dismiss in part and affirm in part.
We review the validity of an appeal waiver de novo.
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).
Where the Government seeks to enforce an appeal waiver and did
not breach its obligations under the plea agreement, we will
enforce the waiver if the record establishes that (1) the
defendant knowingly and intelligently agreed to waive his right
to appeal, and (2) the issues raised on appeal fall within the
2
scope of the waiver. United States v. Blick, 408 F.3d 162,
168-69 (4th Cir. 2005).
Our review of the record indicates that Jones’s waiver
was valid and enforceable as to issues within its scope. The
court specifically questioned Jones regarding the terms of his
written appeal waiver to ensure that he understood the rights he
was waiving. Jones testified that he reviewed the agreement in
full with counsel and understood its terms, and his college
education and firm understanding of the English language further
support this conclusion. See Manigan, 592 F.3d at 628; Blick,
408 F.3d at 169. While the parties appear to have clarified the
terms of their agreement orally on the record, Jones testified
that he fully understood the waiver provision as clarified by
the parties, and this clarification inured to Jones’s benefit.
We therefore conclude that Jones knowingly and intelligently
waived his appellate rights.
As clarified during the plea colloquy, Jones’s
appellate waiver provided that he waived his right to appeal his
convictions and sentence if he received a sentence below 150
months’ imprisonment. * Jones in fact received such a sentence
*
Assuming, without deciding, that this oral clarification
did not constitute a binding modification of the agreement, see
United States v. Martin, 25 F.3d 211, 217 n.4 (4th Cir. 1994)
(“[I]ntegrated written plea agreements are not open to oral
supplementation.” (internal quotation marks omitted)); but see
(Continued)
3
and therefore waived his right to appeal both his convictions
and sentence. However, the Government has not sought to enforce
the appeal waiver to preclude challenges to the voluntariness of
Jones’s guilty plea. Because we will not sua sponte enforce an
appellate waiver, see Blick, 408 F.3d at 168 (citing United
States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)), we
conclude that Jones’s appellate waiver does not foreclose a
challenge to the voluntariness of his plea.
In accordance with Anders, we have reviewed the record
in this case and have found no non-waivable meritorious issues
for appeal. We therefore grant the Government’s motion to
dismiss in part and dismiss the appeal of Jones’s convictions
and sentence, except as to the voluntariness of his guilty plea
and non-waivable sentencing and conviction issues. We also deny
the motion to dismiss in part and affirm the district court’s
judgment as to the voluntariness of Jones’s guilty plea and all
United States v. Wood, 378 F.3d 342, 348-50 (4th Cir. 2004)
(finding effective modification of plea agreement through
repeated mischaracterization of agreement’s terms by court and
“the Government’s affirmative acquiescence in the court’s
explanation”), Jones’s written appeal waiver precluded Jones
from appealing his convictions or any sentence above the
applicable Guidelines range (here, 120 to 150 months). On the
facts presented, we conclude that Jones knowingly and
intelligently waived his appellate rights under either waiver
provision. We further conclude that, given Jones’s sentence,
the waiver provisions are identical in scope and operate to
preclude the same issues on appeal.
4
non-waivable issues. This court requires that counsel inform
Jones, in writing, of the right to petition the Supreme Court of
the United States for further review. If Jones 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 Jones.
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 IN PART;
AFFIRMED IN PART
5