US v. Consuelo Washington, No. 12-4953 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4953 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CONSUELO ANTONIO WASHINGTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:12-cr-00050-BO-1) Submitted: August 30, 2013 Decided: September 9, 2013 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Consuelo Antonio Washington was sentenced to 144 months in prison after pleading guilty, pursuant to a written plea agreement, distribute to cocaine one count base. of As possession part of his with intent to plea agreement, Washington waived the right to appeal his sentence as long as it did not exceed the Guidelines range established at sentencing. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal but questioning whether the district court improperly relied upon hearsay when calculating Washington s dismiss Guidelines Washington s sentence, asserting range. appeal, that he The Government insofar waived sentence in the plea agreement. as the it right has moved challenges to appeal to his his Although informed of his right to do so, Washington has not filed a pro se supplemental brief. We dismiss in part and affirm in part. We review de novo whether a defendant has effectively waived the right to appeal. 493, 496 (4th Cir. 1992). United States v. Marin, 961 F.2d An appellate waiver must be the result of a knowing and intelligent decision to forgo the right to appeal. 1146 (4th omitted). United States v. Broughton-Jones, 71 F.3d 1143, Cir. 1995) (internal quotation marks and citation Generally, if a court fully questions a defendant 2 regarding the appellate waiver during the Rule 11 colloquy, the waiver is both valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Washington knowingly and intelligently agreed to the waiver of appellate rights as set forth in the plea agreement. During the Rule 11 colloquy, the court reviewed the plea agreement, including the waiver provision, with Washington, and Washington affirmed that he understood those terms. Moreover, Washington does not contest the validity of the waiver either in his Anders brief or in his response to the Government s motion to dismiss. Because Washington of challenges the procedural reasonableness his below-Guidelines sentence, the issue he seeks to raise on appeal falls squarely Accordingly, within we the scope grant the of the Government s appellate motion to waiver. dismiss Washington s appeal of his sentence. The appellate waiver, however, does not preclude this court s review of Washington s conviction pursuant to Anders. Because Washington did not move to withdraw his guilty plea in the district colloquy, the court or colloquy raise is any reviewed objections for plain to the Rule error. States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002). 11 United Our review reveals that, while the district court s Rule 11 hearing 3 was truncated finding of and incomplete, plain error, the given record does Washington s not support beneficial a plea agreement, below-Guidelines sentence, and failure to give any indication that his plea was anything but knowing and voluntary. See United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (finding that defendant must show a reasonable probability that, but for the error, he would not have entered the plea ). In accordance with Anders, we have reviewed the record in this case and have found no unwaived meritorious issues for appeal. We therefore affirm Washington s conviction. This court requires that counsel inform Washington, in writing, of the right to petition the Supreme Court of the United States for further filed, review. but If counsel Washington believes requests that such that a a petition petition would be 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 Washington. 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 4
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