Filed: Jan. 05, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4201 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERICK ROMAN, a/k/a Erick Javier Sierra, a/k/a Malian-T, a/k/a King Malian-T, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:09-cr-00598-AW-1) Submitted: December 1, 2011 Decided: January 5, 2012 Before WILKINSON, KING, and AGEE, Circuit Judges. Dismissed in part
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4201 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERICK ROMAN, a/k/a Erick Javier Sierra, a/k/a Malian-T, a/k/a King Malian-T, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:09-cr-00598-AW-1) Submitted: December 1, 2011 Decided: January 5, 2012 Before WILKINSON, KING, and AGEE, Circuit Judges. Dismissed in part ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERICK ROMAN, a/k/a Erick Javier Sierra, a/k/a Malian-T, a/k/a
King Malian-T,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cr-00598-AW-1)
Submitted: December 1, 2011 Decided: January 5, 2012
Before WILKINSON, KING, and AGEE, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant. Emily Noel Glatfelter, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Erick Roman pled guilty in a Fed. R. Crim. P. 11
hearing to one count of conspiracy to participate in a
racketeering enterprise, in violation of 18 U.S.C. § 1962(d)
(2006). He was sentenced to a term of 720 months in prison. In
accordance with Anders v. California, 386 U.S. 738 (1967),
Roman’s attorney has filed a brief certifying that there are no
meritorious issues for appeal but questioning whether the
district court erred in denying Roman’s motion to withdraw his
guilty plea, whether Roman was properly classified as a career
offender pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1 (2010), and whether Roman’s sentence constituted an
abuse of the district court’s discretion. Roman received notice
of his right to file a pro se supplemental brief, but has failed
to do so. The Government has filed a motion to dismiss Roman’s
appeal pursuant to the terms of his plea agreement’s waiver of
appellate rights, by which Roman waives his right to appeal his
conviction and his sentence, reserving only the right to appeal
a term of imprisonment that exceeds life. For the following
reasons, we dismiss in part and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of a given issue if the issue is
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within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). Whether a defendant validly
waived his right to appeal is a question of law that we review
de novo.
Id.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.”
Id. at 169. This determination, often made
based on the sufficiency of the plea colloquy and whether the
district court questioned the defendant about the appeal waiver,
ultimately turns on an evaluation of the totality of the
circumstances.
Id. These circumstances include all of “the
particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the
accused.”
Id. (internal quotation marks omitted).
Here, a review of the record indicates that the
district court fully complied with Rule 11 when accepting
Roman’s plea and specifically reviewed the terms of his plea
agreement with him, including his appellate waiver. Given no
indication in the record to the contrary, we find that Roman’s
waiver of appellate rights is valid and enforceable.
Furthermore, because Roman’s 720-month sentence does not
implicate the limited exception to his forfeiture of the right
to appeal his sentence, we find that the sentencing issues Roman
seeks to raise on appeal fall squarely within the compass of his
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appellate waiver. Accordingly, we grant the Government’s motion
to dismiss Roman’s appeal of his sentence.
We find, however, that Roman’s appellate waiver does
not prevent our review of the district court’s denial of Roman’s
motion to withdraw his guilty plea. A waiver of appeal rights
will not bar appellate review of denial of such a motion if it
contains a “colorable claim” that the plea agreement “is tainted
by constitutional error,” such as involuntariness or the lack of
the effective assistance of counsel. See, e.g., United States
v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). Because
Roman’s motion to withdraw was premised on such claims, we deny
the Government’s motion to dismiss Roman’s appeal of the denial
of his motion to withdraw his plea.
Turning to the merits of Roman’s claim, we review the
denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Battle, 499 F.3d 315, 319 (4th
Cir. 2007). In order to withdraw an otherwise valid guilty plea
before sentencing, a defendant must show that a “fair and just
reason” supports his request to do so. Fed. R. Crim. P.
11(d)(2)(B); United States v. Moore,
931 F.2d 245, 248 (4th Cir.
1991). We have defined a “fair and just” reason as one that in
essence challenges the fairness of the Rule 11 proceeding.
United States v. Lambey,
974 F.2d 1389, 1394 (4th Cir. 1992) (en
banc). Where, as here, the district court substantially
4
complies with the requirements of Rule 11 in accepting a
defendant’s guilty plea, that defendant must overcome a strong
presumption that his guilty plea is final and binding. See id.
In determining whether the defendant has carried his burden, a
court considers six factors:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
Moore, 931 F.2d at 248. We have reviewed the record in this
case and, after carefully considering the factors described in
Moore, conclude that the district court did not abuse its
discretion in denying Roman’s motion to withdraw his guilty
plea.
In accordance with Anders, we have reviewed the record
in this case, mindful of the scope of the appellate waiver, and
have found no meritorious issues for appeal. We therefore
affirm Roman’s conviction and sentence. We deny counsel’s
motion to withdraw. This court requires that counsel inform
Roman, in writing, of his right to petition the Supreme Court of
the United States for further review. If Roman requests that a
petition be filed, but counsel believes that such a petition
5
would be frivolous, counsel may renew his motion for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Roman. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED IN PART
AND AFFIRMED IN PART
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