US v. Devino Putney, No. 08-5221 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5221 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEVINO PATERA PUTNEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:08-cr-00038-FL-1) Submitted: March 26, 2010 Decided: May 6, 2010 Before MICHAEL, * MOTZ, and AGEE, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. * Judge Michael was a member of the original panel but did not participate in this decision. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d). Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Devino Patera Putney pled guilty to conspiracy to distribute and possess with intent to distribute fifty or more grams of cocaine base, five or more kilograms of cocaine, and more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district court sentenced Putney to 235 months imprisonment. Putney appeals, challenging the three-level leadership enhancement Government imposed filed a under motion the to Sentencing dismiss, Guidelines. asking this The court enforce the appellate waiver in Putney s plea agreement. to Putney filed a response, arguing the waiver is invalid for two reasons: first, the sentence under the Eighth constitutes Amendment; cruel and and second, unusual the punishment waiver was involuntary and unknowing because Putney did not know what his Sentencing Guidelines calculation would be at the time of the plea. A defendant may, in a valid plea agreement, waive his appellate rights under 18 U.S.C. § 3742 (2006). States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). United We review 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, 171 (4th Cir. 3 2005). An appeal waiver is valid if the defendant knowingly and intelligently agreed to the waiver. To determine intelligent, the circumstances, Id. at 169. whether the looks to court including the waiver the experience is knowing totality and and of conduct the of the accused, as well as the accused s educational background and familiarity with the terms of the plea agreement. United States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks omitted). Generally, if the district court fully questions the defendant about the waiver during the Rule 11 colloquy, the waiver is valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We believe Putney s appeal waiver forecloses his claim that his sentence constitutes cruel and unusual punishment. Insofar as Putney now challenges the voluntariness of his plea, we also find his argument unavailing. The magistrate judge conducted a thorough plea colloquy, including a discussion of the appellate referred to waiver. the waiver, voluntariness of his plea. At and sentencing, Putney the did district not court challenge the Therefore, we find Putney s plea was voluntarily and intelligently made. For the above reasons, we grant the motion and dismiss Putney s appeal of his sentence. Putney challenges his conviction, we affirm. 4 Government s Insofar as We dispense with oral argument adequately because presented in the the facts and materials legal contentions before the court are and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 5
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