United States v. Javaughn Berry ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVAUGHN BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen Lipton Hollander, Senior District Judge. (1:20-cr-00360-ELH-2)
Submitted: April 26, 2022 Decided: April 28, 2022
Before AGEE and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part, dismissed in part by unpublished per curiam opinion.
ON BRIEF: Steven H. Levin, ROSENBERG MARTIN GREENBERG LLP, Baltimore,
Maryland, for Appellant. Brandon Keith Moore, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Javaughn Berry pled guilty, pursuant to a written plea agreement, to Hobbs Act
robbery and aiding and abetting the same, in violation of 18 U.S.C. §§ 2, 1951(a). The
district court sentenced Berry to 115 months’ imprisonment. On appeal, Berry’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious grounds for appeal but questioning the validity of Berry’s guilty plea
and the reasonableness of his sentence. Although advised of his right to file a pro se
supplemental brief, Berry has not done so. The Government has moved to dismiss the
appeal based on the appellate waiver in Berry’s plea agreement. We affirm in part and
dismiss in part.
“We review an appellate waiver de novo to determine whether the waiver is
enforceable” and “will enforce the waiver if it is valid and if the issue being appealed falls
within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
2021) (internal quotation marks omitted). Upon review of the record, including the plea
agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Berry
knowingly and voluntarily waived his right to appeal his sentence and that the sentencing
issue he raises on appeal falls squarely within the scope of the waiver. Accordingly, we
grant the Government’s motion to dismiss in part and dismiss the appeal as to all issues
within the waiver’s scope.
The waiver provision, however, does not preclude our review of the validity of the
guilty plea pursuant to Anders. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir.
2018). We therefore deny in part the Government’s motion to dismiss. Because Berry did
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not seek to withdraw his guilty plea, we review the adequacy of the Rule 11 hearing for
plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016); see United States
v. Harris, 890 F.3d 480, 491 (4th Cir. 2018) (discussing plain error standard). Our review
of the record leads us to conclude that Berry entered his guilty plea knowingly and
voluntarily, that a factual basis supported the plea, and that his guilty plea is valid. See
United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal outside the scope of Berry’s valid appellate
waiver. We therefore dismiss the appeal as to all issues within the scope of the waiver and
affirm the remainder of the district court’s judgment. This court requires that counsel
inform Berry, in writing, of the right to petition the Supreme Court of the United States for
further review. If Berry 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 Berry.
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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