United States v. Bunch , 395 F. App'x 996 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4948
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBIN ANN BUNCH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00076-FL-1)
Submitted: September 21, 2010 Decided: September 29, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robin Ann Bunch appeals the district court’s
imposition of a 120-month sentence and $6000 fine following her
guilty plea, pursuant to a written plea agreement, to possession
with intent to distribute more than five grams of cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2006). On appeal, Bunch
claims that the district court abused its discretion in imposing
a fine and argues that the 21 U.S.C. § 851 (2006) information of
prior conviction used to enhance her sentence is invalid. The
Government seeks enforcement of the appellate waiver in the plea
agreement to preclude Bunch’s challenge to the fine. Finding no
reversible error, we affirm Bunch’s 120-month sentence; we
dismiss Bunch’s appeal of her fine.
We review a defendant’s waiver of appellate rights de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive [her] right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks and
citation omitted); United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). Generally, if the district court fully
questions the defendant about the waiver during the plea
colloquy, the waiver is valid and enforceable. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We will enforce a
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valid waiver so long as “the issue being appealed is within the
scope of the waiver.” Blick, 408 F.3d at 168.
Our review of the record leads us to conclude that
Bunch’s waiver was knowing and voluntary and that her challenge
to the fine falls within the scope of the waiver provision.
Because Bunch’s claim is barred by the appellate waiver
provision, we dismiss this portion of the appeal.
Bunch also argues that the § 851 information used to
enhance her sentence is invalid because it was filed after the
criminal information but before the indictment. She contends
that she had not “waive[d] prosecution by indictment” under Fed.
R. Crim. P. 7(b), at the time the Government filed the § 851
information and, thus, that there was no charging document to
which the § 851 information would apply. Because the Government
does not rely on the appellate waiver provision with respect to
this issue, we decline to sua sponte enforce the waiver. See
Blick, 408 F.3d at 168.
A person is not subject to an enhanced punishment
based on prior convictions “unless before trial, or before entry
of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such
information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon.” 21 U.S.C.
§ 851(a)(1). The purposes of the § 851 information are to give
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the defendant notice and opportunity to object to the accuracy
of the information and to give her sufficient time to understand
the consequences of pleading guilty or going to trial. United
States v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995).
Although Bunch contends that the Government should
have refiled the § 851 information after the grand jury indicted
her in order for the information to be valid, we conclude that
it need not do so. See United States v. Dickerson, 514 F.3d 60,
64 n.3 (1st Cir. 2008) (stating that government not required to
refile § 851 information after filing superseding indictment and
collecting cases adopting rule). Here, the Government followed
the plain language of § 851 and filed the information before
Bunch entered her guilty plea. See United States v. Cooper, 461
F.3d 850, 853-54 (7th Cir. 2006). Moreover, the information
clearly met the purposes of § 851. See Williams, 59 F.3d at
1185.
Accordingly, we affirm Bunch’s 120-month sentence and
dismiss the appeal of the fine. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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