US v. Victor Spencer, No. 12-4628 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4628 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR DAVIS SPENCER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:11-cr-00047-BO-2) Submitted: March 26, 2013 Decided: April 5, 2013 Before DAVIS, KEENAN, and THACKER, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victor Davis Spencer pled guilty, pursuant to a plea agreement, to intent distribute to cocaine, in conspiracy to more violation of distribute than 21 and to twenty-eight U.S.C. § sentenced to 132 months imprisonment. 846 possess grams of (2006), with crack and was On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but questioning the validity of Spencer s guilty plea and whether the district court committed plain error by failing to rule on designation. Spencer s objection to the career offender Although advised of his right to file a pro se supplemental brief, Spencer has not done so. The Government has moved to dismiss the appeal of Spencer s sentence on the basis of the waiver of appellate rights contained in Spencer s plea agreement. For the Government s motion reasons and that dismiss the follow, we appeal of grant the Spencer s sentence, and we affirm his conviction. A defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). United States v. 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 2 Cir. 2005). An appeal waiver is valid if the defendant knowingly and intelligently agreed to it. Id. at 169. To determine intelligent, this whether a waiver is knowing and Court examines the background, experience, and conduct of the defendant. United States v. Broughton Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). We have thoroughly reviewed the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing. Based on the totality of circumstances in this case, we conclude that Spencer knowingly agreement and and voluntarily understood the entered waiver. into See the United plea States v. General, 278 F.3d 389, 400 (4th Cir. 2002). We further conclude that Spencer s challenge to the district court s handling of his objection to the career offender designation falls within the scope of the waiver. his plea agreement, Spencer waived the right to appeal In his sentence, including any claims related to the determination of his advisory appeal from Guidelines a range, sentence greater established at sentencing. court committed plain reserving than only the the right Guidelines to range Spencer argues that the district error on his outstanding objection to the career offender designation. See Fed. R. Crim. P. 32(i)(3)(B). a sentence well below his by failing to rule However, because Spencer received Guidelines range and this issue relates to the establishment of that range, his discretion falls 3 within the purview of the waiver provision. Accordingly, we grant the Government s motion to dismiss in part and dismiss the appeal of Spencer s sentence. Although the appeal waiver precludes our review of Spencer s sentence, the waiver does not bar review of Spencer s conviction. Because Spencer did not move to withdraw his guilty plea in the district court, we review the Rule 11 hearing for plain error. Cir. 2002). United States v. Martinez, 277 F.3d 517, 525 (4th To establish plain error, [Spencer] must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). We have reviewed the record and correction discern no error warranting on plain error review. In accordance with Anders, we have thoroughly reviewed the entire record for any other potentially meritorious issues outside none. the scope of Spencer s appeal waiver and We therefore affirm Spencer s conviction. have found This Court requires that counsel inform Spencer, in writing, of his right to petition the Supreme Court of the United States for further review. If Spencer requests counsel believes that counsel may in move representation. such this that a a petition petition Court for would leave to be be filed, but frivolous, withdraw from Counsel s motion must state that a copy thereof 4 was served on Spencer. 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. DISMISSED IN PART; AFFIRMED IN PART 5
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