US v. Alfonso Carney, No. 14-4403 (4th Cir. 2014)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4403 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFONSO CARNEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:13-cr-00232-REP-1) Submitted: November 20, 2014 Decided: November 24, 2014 Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part and dismissed in part by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Paul G. Gill, Assistant Federal Public Defenders, Alexandria, Virginia, for Appellant. Stephen Wiley Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alfonzo Carney appeals his convictions and 115-month sentence imposed following his guilty plea to possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012), and distribution and possession with intent to distribute cocaine base, 21 U.S.C. § 841 (2012). On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that questioning there are whether the no meritorious magistrate issues judge for appeal adequately complied with Fed. R. Crim. P. 11 in conducting the plea colloquy. Government has waiver appeal of moved to rights dismiss the appeal, in plea agreement. his citing but The Carney’s Carney was informed of his right to file a pro se supplemental brief but has not done so. For the reasons that follow, we affirm in part and dismiss in part. We review de novo the validity of an appeal waiver. United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013). “We generally will enforce a waiver . . . if the record establishes that the waiver is valid and that the issue being appealed is within the scope of the waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal quotation marks and alteration omitted). A defendant’s waiver is valid if he agreed to it “knowingly and intelligently.” United States v. Manigan, 592 F.3d 621, 627 2 (4th Cir. 2010). Our review of the record leads us to conclude that Carney knowingly and voluntarily waived the right to appeal any sentence within the statutory maximum. Because the district court imposed a sentence below the statutory maximum on both counts, we grant in part the Government’s motion to dismiss and dismiss the appeal of Carney’s sentence. Although Carney agreed to waive his right to appeal his convictions in his plea agreement, a defendant’s waiver of appellate rights constitutional plea. in any challenge See, e.g., court must to cannot the foreclose voluntariness of a colorable the guilty United States v. Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir. 1994). his guilty plea. event Here, Carney challenges the validity of Before accepting a guilty plea, the district conduct a plea colloquy in which it informs the defendant of, and determines that the defendant comprehends, the nature of the charge to which he is pleading guilty, the maximum possible penalty he faces, any mandatory minimum penalty, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the plea is voluntary, supported by an independent factual basis, and not the result agreement. of force, threats, or promises Fed. R. Crim. P. 11(b)(2), (3). 3 outside the plea Because Carney did not assert in the district court any error in the plea proceedings, we review the adequacy of his plea colloquy for plain error. United States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). To establish plain error, Carney must demonstrate error was that rights. plain, (1) the district and (3) the error Henderson (2013). In the v. United guilty affected States, plea court 133 context, S. an erred, (2) the his substantial Ct. 1121, error 1126 affects a defendant’s substantial rights if he demonstrates a reasonable probability error. that he would not have Massenburg, 564 F.3d at 343. pled guilty but for the Even if these requirements are met, we will “exercise our discretion to correct the error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation marks omitted). Our review of the record reveals that the magistrate judge substantially complied with the requirements of Rule 11 in conducting the plea colloquy. * While the record discloses that the magistrate judge did not expressly ask Carney whether he had been forced or threatened into * pleading guilty, see Fed. R. Carney consented to having a magistrate judge preside over the Rule 11 proceedings. 4 Crim. P. 11(b)(2), we are satisfied affect Carney’s substantial rights. 343. The magistrate judge that any error did not See Massenburg, 564 F.3d at otherwise complied with the requirements of Rule 11, ensuring that the plea was knowing, voluntary, and supported by a factual basis. We therefore find the plea valid and enforceable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Carney’s convictions and dismiss the appeal as to his sentence. This court requires that counsel inform Carney, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Carney requests 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 served on Carney. the facts and legal materials before state dispense that with contentions are a oral copy thereof argument adequately was because presented in the We this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 5