US v. Todd Bell, No. 10-5130 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5130 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TODD BELL, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:09-cr-00219-RDB-3) Submitted: July 11, 2011 Decided: July 18, 2011 Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Megan E. Green, MARCUSBONSIB, LLC, Greenbelt, Appellant. Michael Joseph Leotta, Assistant Attorney, Baltimore, Maryland, for Appellee. Maryland, for United States Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Todd Bell appeals from his convictions and sentence for possession and brandishing a firearm in furtherance of a crime of violence, in violation 924(c)(1)(A)(i), (ii) (2006). of 18 U.S.C. §§ 2, On appeal, Bell's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting appeal, but that questioning there are whether no the meritorious district grounds court for committed plain error when it commingled the elements of the two distinct offenses in 18 U.S.C. § 924(c)(1)(A) during the plea colloquy. Bell was informed of his right to file a pro se supplemental brief but has not done so. dismiss the appeal on The Government has filed a motion to the basis of the appellate waiver provision in Bell's plea agreement. A defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). Manigan, 592 F.3d 621, 627 (4th Cir. 2010). United States v. We review the validity of an appellate waiver de novo, and we will uphold a waiver of appellate rights if the waiver is valid and the issue being appealed is covered by the waiver. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United States v. An appellate waiver is valid if the defendant s agreement to the waiver was knowing and intelligent. knowing and Id. at 169. intelligent, we To determine whether a waiver is examine 2 the totality of the circumstances, including the experience and conduct 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 and citation omitted). court fully questions a defendant Generally, if a district regarding the waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy, and the record indicates significance of the that the waiver defendant and was understood not assistance of counsel, the waiver is valid. denied the full effective United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). A review of the Rule 11 hearing transcript confirms that Bell knowingly and intelligently waived his right to appeal his sentence. Bell explicitly waived his right to appeal a sentence of 384 months. Bell confirmed at his Rule 11 hearing that he read the indictment and understood the plea agreement. The district court conducted the colloquy required under Rule 11, ensuring that Bell understood the waiver and was competent to enter the plea. and intelligently We therefore conclude that Bell knowingly waived the right to appeal his sentence. Accordingly, we grant the motion to dismiss as to any sentencing issues, precluding our review of Bell's sentence pursuant to Anders. 3 The waiver provision, however, did not waive Bell's right to appeal his convictions. Defense counsel questions whether the district court erred when it described the elements of the offense with which Bell was charged using both "use and carry" and "possession" terminology. Because Bell did not move to withdraw his guilty plea in the district court or raise any objections during the Rule reviewed for plain error. 11 hearing, the plea colloquy is General, 278 F.3d at 393; United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was affected his substantial rights. U.S. 725, 732 (1993). A plain; and (3) the error United States v. Olano, 507 defendant s substantial rights are affected if the Court determines that the error influenced the defendant s decision to plead guilty and impaired his ability to evaluate with eyes open the direct attendant risks of accepting criminal responsibility. United States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (holding that a defendant must demonstrate that he would not have pled guilty but for the error). We during the hold that colloquy. the court Any did error not did commit not plain affect error Bell's substantial rights, as he does not show that he would not have 4 pled guilty charges. but for the district court's description of the Indeed, Bell made the initial decision to plead guilty on the basis of the indictment, in which the offense is listed correctly. At the Rule 11 hearing, Bell assured the court that he had reviewed the indictment, discussed the charges and his plea with his attorney, and understood the charges to which he was pleading guilty. Bell's claim that he failed to receive adequate notice of the charges is insufficient to overcome his sworn statements at his Rule 11 hearing. Allison, 431 U.S. 63, 74 (1977). have thoroughly examined the See Blackledge v. In accordance with Anders, we entire record for any other potentially meritorious issues not covered by the waiver and have found none. to dismiss as Accordingly, we deny the Government's motion to Bell's convictions, and we affirm those convictions. In sum, the Government's motion to dismiss is granted in part and denied in part, Bell's Anders appeal of his sentence is dismissed, and his convictions are affirmed. This Court requires that counsel inform Bell, in writing, of his right to petition the Supreme Court of the United States for further review. If Bell requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel's motion must state that a copy thereof 5 was served on Bell. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 6
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