US v. Conrad Dickerson, No. 09-5092 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5092 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CONRAD WAYNE DICKERSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (7:05-cr-00131-BO-1) Submitted: January 14, 2011 Decided: February 11, 2011 Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in part by unpublished per curiam opinion. Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Conrad Wayne Dickerson pled guilty, pursuant to a written plea agreement, to possession with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). He was sentenced to 130 months imprisonment. This appeal timely followed. Dickerson s attorney first submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, in his view, there questioning object to were whether the no meritorious counsel relevant conduct for ineffective was grounds for determination appeal, failing made by probation officer and adopted by the district court. course of our Anders review, we identified two but to the In the nonfrivolous issues (1) whether the district court committed plain error in conducting Dickerson s Fed. R. Crim. P. 11 hearing; and (2) whether the district court committed procedural error in failing to explain the reasons for the 130-month sentence it imposed and directed the parties addressing those issues. to submit supplemental briefs Briefing is now complete, and this case is ripe for disposition. We first turn to the ineffective assistance of counsel argument raised in counsel s Anders brief. ineffectiveness record, is conclusively ineffective assistance 2 apparent claims Unless an attorney s on are the face not of the generally addressed on direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing standard and noting that ineffective assistance of counsel claims generally should be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)). Because we find no conclusive evidence on the record that counsel rendered ineffective assistance, we decline to consider this claim on direct appeal. We next consider the validity of Dickerson s guilty plea. Prior to accepting a guilty plea, a trial court must conduct a plea colloquy in which it informs the defendant of, and determines that the defendant comprehends, the nature of the charge to which he is pleading guilty, any mandatory minimum penalty, the maximum possible penalty he faces, and the rights he relinquishes by pleading guilty. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). There colloquy. were several omissions in Dickerson s plea First, Dickerson was not advised that his statements at the hearing could be used in a prosecution for perjury, as required by Fed. R. Crim. P. 11(b)(1)(A). did not particularize the nature of the The district court offense to which Dickerson was pleading guilty, as required by Fed. R. Crim. P. 11(b)(1)(G). Further, the district court made only cursory mention of Dickerson s appellate waiver, thus failing to discuss 3 the particular terms of the waiver and to question Dickerson to ensure his understanding of those terms. 11(b)(1)(N). See Fed. R. Crim. P. The district court also failed to inform Dickerson that it would consult the advisory Sentencing Guidelines and the statutory sentencing factors in determining his sentence, and that it had the authority at Guidelines. Id. neglected inform to special assessment. to (b)(1)(M). Dickerson vary from Finally, of its the the Sentencing district obligation to court impose a Id. at (b)(1)(L). Because Dickerson did not move to withdraw his guilty plea or otherwise object to these omissions, this court s review is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009) (stating error). error standard of review for unpreserved Rule To establish plain error, Dickerson must show: was made; (2) the error is plain; and (3) the 11 (1) an error Massenburg, 564 F.3d at 342-43. affects substantial rights. To demonstrate impact on his substantial rights, Dickerson must show that, but for the Rule 11 errors, collectively, he would not have pled guilty. individually or See United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Even if such error is found, [t]he decision to correct the error lies within our discretion, error seriously and we affects exercise the that discretion fairness, 4 only integrity or if the public reputation of judicial proceedings. Massenburg, 564 F.3d at 343 (internal quotation marks omitted). Although he identifies many of the aforementioned omissions, Dickerson s primary contention appears to be that he would not have determine, at distribution powder pled guilty had sentencing, that seven of of cocaine). We grams reject he known his crack this the offense cocaine argument court involved (as as would it opposed the to erroneously conflates the guilty plea and sentencing proceedings, which are distinct. The voluntariness of a defendant s decision to plead guilty cannot turn on the court s sentencing determinations. further conclude there is nothing in the record to We indicate that, but for the district court s omissions in the Rule 11 hearing, Dickerson would not have pled guilty. Dickerson thus fails to satisfy the challenging burden of establishing plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Accordingly, we affirm Dickerson s conviction. Finally, we turn to Dickerson s procedural reasonableness of his sentence. challenge brief, the Dickerson s Government appeal as moves to precluded contained in Dickerson s plea agreement. the In its supplemental dismiss by to the this aspect appellate of waiver For the reasons that follow, we grant the Government s motion and dismiss the appeal as to this issue. 5 A defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews the validity of an appellate waiver de novo, and will enforce the waiver if it is valid and the issue appealed is within the scope thereof. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appeal waiver is valid if the defendant knowingly and intelligently determine whether agreed a to waiver the is waiver. knowing Id. and at 169. To intelligent, this court examines the background, experience, and conduct of the defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th 1995). Cir. Generally, if the district court fully questions a defendant regarding the waiver during the Rule 11 plea colloquy, the waiver is both valid and enforceable. United States 1991). v. Wessells, 936 F.2d 165, 167-68 (4th Cir. Ultimately, however, the issue is evaluated by reference to the totality of the circumstances. United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). The primary issue in this case is whether the waiver is knowing and voluntary in light of the district failure to meaningfully discuss it on the record. court s Dickerson s plea agreement contained a broad waiver-of-rights provision in 6 which Dickerson waived his right to appeal whatever sentence is imposed, so long Guidelines range. forth in as the sentence was within the advisory This clear and unambiguous waiver was set Dickerson s plea agreement, which Dickerson signed. Dickerson testified at his Rule 11 hearing that he had read the plea agreement and discussed it with his lawyer. Dickerson, who was then twenty years old, had completed the tenth grade and was literate in English; further, there were no issues as to his competency. terms of Finally, the understood although waiver those or terms, the question it did court did not detail the Dickerson to ensure he inform Dickerson that he had waived his right to appeal. We court s recognize explanation of that a the waiver sufficiency is an of the important district factor in determining whether the waiver was knowingly and intelligently accepted, see Manigan, 592 F.3d at 627, and that there was no substantive explanation here. of the circumstances, we However, in light of the totality conclude Dickerson knowingly and intelligently agreed to the appellate waiver. See General, 278 F.3d and at challenge 400-01. to the As the waiver is valid reasonableness of his Dickerson s within-Guidelines sentence falls soundly within the scope of the waiver, we will enforce the waiver to grant the Government s motion to dismiss. See Blick, 408 F.3d at 169. 7 For these reasons, we affirm the district court s judgment as to Dickerson s conviction, grant the Government s motion to dismiss as to Dickerson s appeal of his sentence, and dismiss that aspect of this appeal. we have reviewed the record In accordance with Anders, and find no other meritorious issues. This court requires that counsel inform Dickerson, in writing, of the right to petition United States for further review. the Supreme Court of the If Dickerson 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 Dickerson. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART; DISMISSED IN PART 8
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