US v. Calvin Garner, Jr., No. 12-4651 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4651 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CALVIN COLWETH GARNER, JR., a/k/a Spoke, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:10-cr-00079-BO-1) Submitted: March 28, 2013 Decided: April 4, 2013 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, 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 Unpublished opinions are not binding precedent in this circuit.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: Calvin Colweth Garner, Jr., pled guilty to conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base and five kilograms or more of cocaine, 21 U.S.C. § 846 (2006), and conspiracy to instruments, 18 U.S.C. § 1956(h) (2006). launder monetary The district court granted the Government s motion for a downward departure based on Garner s substantial assistance and imposed a below- Guidelines sentence of 330 months imprisonment. On appeal, Garner s Anders attorney California, there are 386 no filed U.S. a brief pursuant 738 (1967), stating meritorious grounds for to that, appeal in but his v. view, questioning whether (1) the district court sufficiently complied with Fed. R. Crim. P. 11 in accepting Garner s guilty plea; (2) the appellate waiver in the plea agreement is valid; and (3) the district court erred in imposing a four-level sentencing enhancement for Garner s leadership role in the offense. has filed a enhancement pro for se his supplemental role in brief the also offense, Garner challenging as well the as the sentencing court s drug quantity determination and imposition of enhancements firearm. for obstruction of justice and possession The Government has not filed a response. of a We affirm. Prior to accepting a guilty plea, the district court must conduct a plea colloquy in which it informs the defendant 2 of, and determines that the defendant understands: the nature of the charges to which he is pleading guilty, any mandatory minimum penalty, the maximum possible penalty, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Additionally, the district court must ensure that the defendant s plea was voluntary and did not result from force, threats, or promises not contained in the plea agreement. R. Crim. P. 11(b)(2). Fed. Because Garner did not move to withdraw his guilty plea in the district court or raise any objections to the Rule 11 colloquy, we review the colloquy for plain error. United States v. Martinez, 277 F.3d 517, 524 27 (4th Cir. 2002). We find that the district court substantially complied with Rule 11 s requirements, and committed no error warranting correction on plain error review. We therefore affirm Garner s convictions. Next, Garner s Garner s appeal waiver. waive his exceeded right the to counsel questions the validity of In his plea agreement, Garner agreed to appeal Sentencing any sentence Guidelines unless range such sentence established at sentencing. However, the Government has not sought to enforce the waiver. It is this court s policy not to raise this issue sua sponte. United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (stating that, if Anders brief is filed in case with 3 appeal waiver, Government s failure to respond allow[s] this court to perform the required Anders review ); see United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (stating that, where Government expressly elects not to raise waiver, this court may decline to consider it). Accordingly, by failing to file a response, the Government cannot enforce the appellate waiver in Garner s plea agreement. Last, reasonableness Garner s of appellate Garner s counsel sentence, questions specifically the challenging the district court s imposition of a four-level enhancement for Garner s role in the offense. In addition to raising this same claim, Garner s pro se supplemental brief also challenges the sentencing court s drug quantity determination (based on the presentence report) and the sentencing court s enhancements for obstruction of justice and possession of a firearm. This court reasonableness under standard. reviews a Garner s deferential sentence for abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). This review entails appellate consideration of both the procedural and substantive reasonableness of the sentence. determining procedural reasonableness, this Id. at 51. court In considers whether the district court properly calculated the defendant s advisory Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on clearly erroneous 4 facts, or failed to explain sufficiently the selected sentence. Id. at 49-51. error, this If the sentence is free of significant procedural court reviews it for substantive reasonableness, tak[ing] into account the totality of the circumstances. Id. at 51. Because Garner withdrew all of his objections to the presentence report at sentencing, including the claims regarding drug quantity, the role in the offense enhancement, and the firearm enhancement, appellate review of these claims is waived. Generally, unpreserved plain error. errors in sentencing are reviewed for See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may waive appellate review of a sentencing error if he raises it and then knowingly withdraws an objection to the error before the district court. See United States v. Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant s withdrawal of objection to upward departure precluded appellate review of departure); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ( A party who identifies an issue, explicitly withdraws it, has waived the issue. ). and An appellant is precluded from challenging a waived issue on appeal. Rodriguez, 311 F.3d at 437. from a situation in which then See Such a waiver is distinguishable a party fails to make a timely assertion of a right what courts typically call a forfeiture, 5 id. (quoting Olano, 507 U.S. at 733), which, as noted above, may be reviewed on appeal for plain error. 733-34. See Olano, 507 U.S. at Because Garner expressly withdrew his objections at sentencing to enhancements of the which drug he quantity now seeks determination and review, court this the is precluded from considering these issues on appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Garner s convictions and sentence. This court requires that counsel inform Garner, in writing, of the right to petition the Supreme Court of the United States for further review. If Garner 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 Garner. 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. AFFIRMED 6