US v. Larry Taylor, Jr., No. 14-4347 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4347 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LARRY LAWSON TAYLOR, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:13-cr-00087-JRS-1) Submitted: October 30, 2014 Before AGEE and Circuit Judge. THACKER, Decided: Circuit Judges, November 6, 2014 and DAVIS, Senior Dismissed by unpublished per curiam opinion. Jeffrey Lee Everhart, RICE AND EVERHART, Richmond, Virginia, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Erik Sean Siebert, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Lawson Taylor, Jr., pled guilty, pursuant to a written plea agreement, to possession with intent to distribute cocaine base. On appeal, Taylor’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning whether the district court appropriately statutory sentencing factors. considered the The Government moves to dismiss the appeal based upon Taylor’s appellate waiver provision in his plea agreement. Taylor has filed a pro se supplemental brief, alleging that he was improperly sentenced because the court did not subpoena his psychiatrist or consider his mitigation evidence and because his counsel did not properly prepare and present his mitigation evidence. After careful consideration of the entire record, we affirm. We review de novo a defendant’s waiver of appellate rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). “A defendant may waive his right to appeal if that waiver is the result of a knowing and intelligent decision to forgo the right to appeal.” United States v. Amaya-Portillo, 423 2005) F.3d 427, omitted). To intelligent, we 430 (4th determine look “to Cir. whether the (internal the totality waiver of quotation is the marks knowing and circumstances, including the experience and conduct of the accused, as well as 2 the accused’s educational background and familiarity with the terms of the plea agreement.” F.3d 389, 400 (4th Cir. United States v. General, 278 2002) (internal quotation marks omitted). Here, we find that the totality of the circumstances leads to the enforceable. thirty-four conclusion that the waiver is valid and At the time Taylor entered his guilty plea, he was years old, had an eleventh grade education, was adjudged competent to plead guilty, and had experience with the court system. read, The plea agreement — which Taylor acknowledged he discussed with counsel, and understood — clearly and unambiguously set out the appellate waiver provision, and the district court specifically questioned Taylor’s understanding of the waiver States provision v. during Lemaster, 403 the F.3d plea 216, colloquy. 221-22 See Cir. (4th United 2005) (explaining that, absent compelling evidence to the contrary, “the truth of sworn statements made during a Rule 11 colloquy is conclusively established”). asserted that he did not Further, at no point has Taylor understand the plea general or the waiver provision in particular. that Taylor’s voluntary, and waiver the of waiver appellate provision enforceable. 3 rights is was agreement in Thus, we find knowing therefore valid and and We will enforce a valid waiver so long as “the issue being appealed is within the scope of the waiver.” F.3d at 168. Blick, 408 It is apparent that the sentencing issues raised by counsel in the Anders brief and by Taylor in his supplemental brief fall within the scope of the appellate waiver provision, which “waive[d] the right to appeal the conviction and any sentence within the statutory maximum . . . (or the manner in which that sentence whatsoever.” Both was determined) Taylor and his . . . counsel on any argue ground that his sentence was the result of errors by the district court and, according to Taylor, by his attorney. As Taylor’s waiver contained no exemptions and barred challenges to both Taylor’s conviction and sentence, we grant the Government’s motion to dismiss. In so doing, we recognize that fundamental issues that cannot be waived. there are certain However, our review of the record in accordance with Anders has not disclosed any unwaived and potentially meritorious Accordingly, we dismiss Taylor’s appeal. issues for review. This court requires that counsel inform Taylor, in writing, of his right to petition the Supreme Court of the United States for further review. If Taylor 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 4 from representation. Counsel’s motion must state that a copy thereof was served on Taylor. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 5
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