Filed: Apr. 05, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4628 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR DAVIS SPENCER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:11-cr-00047-BO-2) Submitted: March 26, 2013 Decided: April 5, 2013 Before DAVIS, KEENAN, and THACKER, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4628 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR DAVIS SPENCER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:11-cr-00047-BO-2) Submitted: March 26, 2013 Decided: April 5, 2013 Before DAVIS, KEENAN, and THACKER, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam o..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4628
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR DAVIS SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:11-cr-00047-BO-2)
Submitted: March 26, 2013 Decided: April 5, 2013
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, 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Unpublished opinions are not binding precedent in this circuit.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:
Victor Davis Spencer pled guilty, pursuant to a plea
agreement, to conspiracy to distribute and to possess with
intent to distribute more than twenty-eight grams of crack
cocaine, in violation of 21 U.S.C. § 846 (2006), and was
sentenced to 132 months’ imprisonment. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal, but questioning the validity of Spencer’s guilty plea
and whether the district court committed plain error by failing
to rule on Spencer’s objection to the career offender
designation. Although advised of his right to file a pro se
supplemental brief, Spencer has not done so. The Government has
moved to dismiss the appeal of Spencer’s sentence on the basis
of the waiver of appellate rights contained in Spencer’s plea
agreement. For the reasons that follow, we grant the
Government’s motion and dismiss the appeal of Spencer’s
sentence, and we affirm his conviction.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This Court reviews
the validity of an appellate waiver de novo, and will enforce
the waiver if it is valid and the issue appealed is within the
scope thereof. United States v. Blick,
408 F.3d 162, 168 (4th
2
Cir. 2005). An appeal waiver is valid if the defendant
knowingly and intelligently agreed to it. Id. at 169. To
determine whether a waiver is knowing and intelligent, this
Court examines the background, experience, and conduct of the
defendant. United States v. Broughton–Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). We have thoroughly reviewed the plea agreement
and the transcript of the Fed. R. Crim. P. 11 hearing. Based on
the totality of circumstances in this case, we conclude that
Spencer knowingly and voluntarily entered into the plea
agreement and understood the waiver. See United States v.
General,
278 F.3d 389, 400 (4th Cir. 2002).
We further conclude that Spencer’s challenge to the
district court’s handling of his objection to the career
offender designation falls within the scope of the waiver. In
his plea agreement, Spencer waived the right to appeal his
sentence, including any claims related to the determination of
his advisory Guidelines range, reserving only the right to
appeal from a sentence greater than the Guidelines range
established at sentencing. Spencer argues that the district
court committed plain error by failing to rule on his
outstanding objection to the career offender designation. See
Fed. R. Crim. P. 32(i)(3)(B). However, because Spencer received
a sentence well below his Guidelines range and this issue
relates to the establishment of that range, his discretion falls
3
within the purview of the waiver provision. Accordingly, we
grant the Government’s motion to dismiss in part and dismiss the
appeal of Spencer’s sentence.
Although the appeal waiver precludes our review of
Spencer’s sentence, the waiver does not bar review of Spencer’s
conviction. Because Spencer did not move to withdraw his guilty
plea in the district court, we review the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). “To establish plain error, [Spencer] must show that
an error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). We have reviewed the record
and discern no error warranting correction on plain error
review.
In accordance with Anders, we have thoroughly reviewed
the entire record for any other potentially meritorious issues
outside the scope of Spencer’s appeal waiver and have found
none. We therefore affirm Spencer’s conviction. This Court
requires that counsel inform Spencer, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Spencer requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this Court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
4
was served on Spencer. 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
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