US v. James Febrez, No. 09-4539 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4539 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES EDWARD FEBREZ, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-01165-RBH-1) Submitted: July 26, 2010 Decided: August 9, 2010 Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in part by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Carrie Ann Fisher, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Edward Febrez pled guilty, pursuant to a written plea agreement, ammunition by to a one count convicted of possession felon, in §§ 922(g)(1), 924(a)(2), (e) (2006). of firearms violation of P. 11(c)(1)(C). The U.S.C. The parties stipulated in See Fed. R. the plea agreement to a 240-month prison sentence. Crim. 18 and district court accepted the plea agreement, and therefore was bound to sentence Febrez to 240 months imprisonment, which it did. On appeal, Febrez s 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 district court plainly erred in accepting Febrez s guilty plea and abused its discretion in imposing sentence. Febrez has filed a pro se supplemental brief, in which he questions whether his guilty plea was voluntary and asserts that trial counsel rendered ineffective assistance. We affirm in part and dismiss in part. Because Febrez did not move in the district court to withdraw his guilty plea, his challenge to the adequacy of the Fed. R. Crim. See United 2002). P. States 11 v. hearing is Martinez, 277 reviewed F.3d for 517, plain 525 error. (4th Cir. Our review of the transcript of the plea hearing leads us to conclude that the district court substantially complied 2 with the mandates of Rule 11 in accepting Febrez s guilty plea and that the court s substantial rights. omissions did not affect Febrez s Critically, the transcript reveals that the district court ensured the plea was supported by an independent factual basis and that Febrez entered the plea knowingly and voluntarily an States See United with v. (4th Cir. 1991). Turning ineffective understanding DeFusco, of 949 the F.2d consequences. 114, 116, 119-20 Accordingly, we discern no plain error. to Febrez s assistance, claim claim is this that counsel more rendered appropriately considered in a post-conviction proceeding brought pursuant to 28 U.S.C.A. § 2255 (West Supp. 2010), unless counsel s alleged deficiencies States Because v. conclusively Richardson, we find no appear 195 F.3d conclusive on the 192, record. 198 evidence (4th on the See United Cir. 1999). record that counsel rendered ineffective assistance, we decline to consider this claim on direct appeal. Febrez abused its also discretion questions in whether imposing the sentence. district We court conclude, however, that we do not have jurisdiction over this portion of the appeal. Section 3742(c) of Title 18 of the United States Code limits the circumstances under which a defendant may appeal a sentence to which he stipulated in a Rule 11(c)(1)(C) plea agreement to claims that his sentence was imposed in violation 3 of law [or] was imposed as a result of an incorrect application of the [S]entencing [G]uidelines. United States v. Sanchez, 146 F.3d 796, 797 (10th Cir. 1998) (internal quotation marks omitted); see United States v. Littlefield, 105 F.3d 527, 527-28 (9th Cir. 1997) (per curiam). Here, Febrez s sentence was not imposed in violation of law. His 240-month prison sentence falls below the statutory maximum sentence of life imprisonment, see 18 U.S.C. § 924(e). Nor is his sentence a result of an incorrect application of the Sentencing Guidelines. A sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is contractual and not based upon the Sentencing Guidelines. See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005) ( A sentence imposed under a Rule 11(c)(1)(C) plea arises directly from the agreement itself, not from the Guidelines. ); Littlefield, 105 F.3d at 528. Because § 3742(c) bars review of sentences imposed pursuant to a Rule 11(c)(1)(C) plea agreement and none of the exceptions applies, we dismiss Febrez s appeal of his sentence. See United States v. Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir. 1994). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Febrez s conviction and dismiss the appeal of his sentence. This court requires that counsel inform Febrez, in writing, of the right to petition the Supreme Court 4 of the United States for further review. that a petition be filed, but counsel If Febrez requests 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 served on Febrez. the facts and state dispense that with a oral copy thereof argument was because We 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 5
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