United States v. Garris , 264 F. App'x 290 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5266
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN PAUL GARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (4:06-cr-00016-FL)
Submitted: February 4, 2008 Decided: February 15, 2008
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin P. Garris appeals from his 324-month sentence for
mail fraud, in violation of 18 U.S.C. § 1341 (2000) (Count 3), wire
fraud, in violation of 18 U.S.C. § 1343 (2000) (Count 41), making
fraudulent statements in obtaining federal employee compensation,
in violation of 18 U.S.C. § 1920 (2000) (Count 44), and possession
with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841 (2000) (Count 47). On appeal, Garris contends that the
district court erred in determining his base offense level as to
Count 47, as there was no evidence produced at the sentencing
hearing to support the quantity of drugs calculated by the
probation officer in the presentence report. Garris asserts that
the court further erred by enhancing his sentence based on facts
that were neither admitted by him nor found by a jury beyond a
reasonable doubt, resulting in a 324-month term of imprisonment
that was in excess of the statutory maximum of twenty years. In
response, the Government contends that Garris’ claims relating to
the establishment of his sentencing guidelines range are barred by
the appellate waiver in his plea agreement. As for Garris’ claim
that his sentence exceeded the statutory maximum, the Government
concedes that this claim is not precluded by the appellate waiver,
but asserts that it is without merit. Upon review of the record,
we dismiss Garris’ claims regarding determination of his sentencing
guidelines range and affirm his sentence.
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Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether a defendant has
waived his right to appeal is an issue of law subject to de novo
review. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
A waiver will preclude appeal of a specific issue if the record
establishes that the waiver is valid and that the issue is within
the scope of that waiver. United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994); cf. United States v. Blick, 408 F.3d 162,
171 (4th Cir. 2005) (refusing to enforce waiver for a “narrow class
of claims” that are not within the scope of the waiver).
Garris claims there was insufficient evidence for the
district court to determine the amount of drugs for which he was
held responsible. Garris notes that the plea agreement contained
no stipulated drug amount, that he made no relevant admissions at
the plea hearing, and that there was no evidence presented by the
Government at the sentencing hearing. However, this claim is
squarely within the scope of the appellate waiver, as Garris waived
the right to appeal “whatever sentence is imposed, including any
issues that relate to the establishment of the advisory Guidelines
range,” as he reserved only the right to appeal from a sentence in
excess of the advisory guidelines range. See Attar, 38 F.3d at
731-33. Garris was sentenced to 324 months’ incarceration, which
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was at the bottom of the calculated guidelines range. Accordingly,
Garris’ claim is barred by the appellate waiver.
Garris’ next claim is that the district court violated
his Sixth Amendment rights by enhancing his sentence based on facts
that were not admitted by him nor determined by a jury beyond a
reasonable doubt. While Garris seemingly raises a claim under
United States v. Booker, 543 U.S. 220 (2005), his appellate waiver
bars any claims that “relate to the establishment of the advisory
Guidelines range.” Therefore, Garris’ claim that his guidelines
range was calculated in violation of Booker is clearly encompassed
within the broad scope of the appellate waiver. See Blick, 408
F.3d at 168-170 (claims pursuant to Booker are subsumed by
appellate waiver). However, Garris also asserts that the factual
determinations made by the district court resulted in a sentence
that was in excess of the statutory maximum of twenty years.
Garris’ appellate waiver does not bar him from challenging his
sentence if it was imposed in violation of the maximum penalty
provided by statute. See United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005). Because Garris failed to raise this specific
objection to his sentence before the district court, his claim is
reviewed for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993).
While Garris asserts that he believed his maximum
exposure in pleading guilty was limited by statute to a term of
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twenty years, his claim is without merit. Regarding Counts Three,
Forty-One, and Forty-Seven, Garris’ plea agreement noted that the
statutory maximum term for each individual count was twenty years’
incarceration.* Garris’ sentence did not exceed the statutory
maximum on any of the individual counts, as the district court
sentenced Garris to a term of 240 months on Counts 3 and 41, to be
served concurrently, a term of sixty months on Count 44, to be
served concurrently, and a term of 240 months on Count 47, of which
eighty-four months were to run consecutively to the other counts.
While the total term of imprisonment of 324 months was
greater than twenty years, this was due to the impact of U.S.
Sentencing Guidelines Manual § 5G1.2(d) (2006), which states that
if the highest statutory maximum is lower than the total punishment
under the Guidelines, the court shall run the sentences
consecutively “to the extent necessary to produce a combined
sentence equal to the total punishment.” Thus, Garris’ sentence of
324 months was not in excess of the statutory maximum on any one
count, but rather was the result of part of the sentence for Count
47 being run consecutively to the other counts. Therefore, Garris
*
On Count Forty-Seven, the plea agreement erroneously stated
that the maximum term of imprisonment for unlawful distribution of
a controlled substance was thirty years. However, the probation
officer identified this error and correctly noted in the
presentence report that the maximum term was twenty years.
Furthermore, the district court notified Garris of the correct
maximum term at his sentencing hearing.
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was appropriately sentenced within the maximum penalties provided
by statute as to each count.
Accordingly, we dismiss Garris’ claims regarding
determination of his sentencing guidelines range while otherwise
affirming his sentence. 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
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