US v. DÂ’Quel Washington, No. 15-4268 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4268 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. D’QUEL NAJAE WASHINGTON, a/k/a Problem, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Louise W. Flanagan, District Judge. (2:14-cr-00013-FL-1) Submitted: November 24, 2015 Decided: December 3, 2015 Before MOTZ, SHEDD, and WYNN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, 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 Unpublished opinions are not binding precedent in this circuit.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: D’Quel Najae Washington pled guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with the intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2012) (Count 1), use and carry of trafficking (2012) a firearm crime, (Count in 13), during and violation and of possession in 18 of relation U.S.C. a to a drug § 924(c)(1)(A) stolen firearm, violation of 18 U.S.C. §§ 922(j), 924 (2012) (Count 15). district court imposed Guidelines-range consecutive to concurrent sentences a on mandatory Counts minimum 105-month 1 and sentence in The low-end-of-the- 15, to be served of 60 months on Count 13. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious issues that are reviewable in light of Washington’s appellate waiver, but arguing that the district court clearly erred in its drug quantity determination at sentencing. The Government filed a motion to dismiss the appeal on the ground that Washington knowingly and intelligently waived the right to appeal his conviction and sentence. a response in opposition to the review the record under Anders. Washington’s counsel filed motion, citing our duty to Although informed of his right to file a pro se brief, Washington has not done so. 2 We grant the Government’s motion to dismiss in part with respect to all issues those falling issues review within beyond pursuant to Washington’s the our scope appellate of duty the under waiver. waiver and Anders, As to subject to we deny the Government’s motion but affirm the district court’s judgment. We review de novo a defendant’s waiver of appellate rights. United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). A defendant may waive the right to appeal as part of a valid plea agreement. United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). In assessing whether an appellate waiver bars a defendant’s appeal, we analyze both the validity and the scope of the waiver. United States v. Blick, 408 F.3d 162, 171 n.10 (4th Cir. 2005). intelligently totality of To determine whether Washington knowingly and waived the his appellate circumstances, rights, including we the look “to the experience and conduct of the accused, as well as the accused’s educational background and agreement.” familiarity with the terms of the plea United States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks omitted). “Generally, if a district court questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid.” (internal quotation marks omitted). 3 Copeland, 707 F.3d at 528 Here, English, appeal the terms informing the of the waiver Washington conviction and that were he whatever clear and waived “the sentence is in plain right to imposed,” including “any issues that relate to the establishment of the advisory Guideline range.” At his Fed. R. Crim. P. 11 plea colloquy, Washington confirmed that he read and understood the plea agreement and its terms and that he had an opportunity to discuss the terms of the agreement with counsel. the district court questioned Washington Furthermore, regarding the plea waiver and Washington indicated that he understood the provision limited his ability to appeal his sentence. Accordingly, considering the totality of the circumstances, we conclude that Washington knowingly and intelligently agreed to the appellate waiver. Therefore, we grant the Government’s motion to dismiss with respect to all waivable issues, including whether the district court clearly erred in its drug quantity determination. Nonetheless, because a valid appellate waiver provision in a plea agreement does not foreclose review of every issue that might be raised on appeal, we review the record, pursuant to Anders, for any nonwaivable issues. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (listing issues not waived by appellate waiver). Our 4 review of the record in accordance with Anders does not reveal the existence of any nonwaivable, meritorious issue. We therefore grant the Government’s motion to dismiss in part and dismiss the appeal as to any issues for which waiver is legally permissible. We deny in part the Government’s motion to dismiss with respect to any nonwaivable issues but affirm the district court’s judgment as to any ground not encompassed by Washington’s knowing and intelligent appellate waiver. This writing, court of the requires right to that counsel petition United States for further review. the inform Washington, Supreme Court of in the If Washington 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 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 5
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