Filed: Nov. 08, 2005
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4222 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JAMAL WILLIAMS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CR-03-54) Submitted: October 19, 2005 Decided: November 8, 2005 Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4222 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JAMAL WILLIAMS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CR-03-54) Submitted: October 19, 2005 Decided: November 8, 2005 Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMAL WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-54)
Submitted: October 19, 2005 Decided: November 8, 2005
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamal Williams pled guilty to one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(2000), and was sentenced to 100 months in prison. He now appeals.
The United States has moved to dismiss the appeal, based on
Williams’ waiver of his appellate rights. Williams opposes the
motion. We find that the appeal waiver is valid and enforceable
and the issue Williams seeks to raise on appeal lies within the
scope of the waiver. We therefore grant the United States’ motion
and dismiss the appeal.
Williams signed a written plea agreement containing the
following provision:
The Defendant agrees . . . [t]o knowingly and expressly
waive all rights, conferred by 18 U.S.C. § 3742, to
appeal whatever sentence is imposed, including any issues
that relate to the establishment of the Guideline range,
reserving only the right to appeal from an upward
departure from the Guideline range that is established at
sentencing.
The plea agreement set forth the minimum and maximum sentence that
Williams faced and made clear that the sentencing guidelines
applied and that the court would apply a sentence within the
guidelines unless there was a basis for departure.
At Williams’ arraignment, the district court ascertained
that Williams was thirty-two years old and had a ninth grade
education. He was not under the influence of drugs or alcohol.
The court identified the rights that Williams waived by pleading
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guilty, and specifically mentioned the right to appeal. Williams
informed the court that he understood the court’s explanation of
the waiver. The court ascertained that Williams understood the
charges against him, the applicable penalties, and the mandatory
nature of the sentencing guidelines. Williams represented to the
court that he was satisfied with his attorney’s services and that
he had voluntarily entered into the plea agreement. He stated that
he was guilty of the offense charged. After hearing the
Government’s proffer, the district court concluded that Williams
had knowingly and voluntarily entered his plea, which was supported
by an independent factual basis. The court accordingly adjudged
Williams guilty.
At sentencing, the district court adopted the presentence
report, determined that Williams’ guideline range was 100-120
months, and sentenced him to 100 months in prison. Williams
appeals, contending that the district court violated the Sixth
Amendment when it increased his offense level based upon the number
of firearms involved in the offense and because one firearm had an
obliterated serial number. The United States moves to dismiss the
appeal, contending that Williams validly waived his right to appeal
this issue.
This case is governed by our recent decision in United
States v. Blick,
408 F.3d 162 (4th Cir. 2005). The issue in Blick
was whether a waiver-of-appellate rights provision in a plea
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agreement was enforceable after the Supreme Court’s decision in
United States v. Booker,
125 S. Ct. 738 (2005). We employed a two-
part analysis to decide the issue. First, we considered whether
the waiver was knowing and voluntary. Blick, 408 F.3d at 169.
After deciding that it was, we considered whether the issues raised
on appeal were within the scope of that motion. Because they were,
we dismissed the appeal. Blick, 408 F.3d at 169-73.
This court reviews de novo the validity of a waiver.
United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992). Whether
a waiver of the right to appeal is knowing and intelligent depends
upon the facts and circumstances surrounding its making, including
the defendant’s background, experience, and conduct. United
States v. Davis,
954 F.2d 182, 186 (4th Cir. 1992). A waiver is
ineffective if the district court fails to question the defendant
about it, United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir.
1991), unless other evidence in the record shows that the waiver
was informed and voluntary. Davis, 954 F.2d at 186.
Here, Williams’ waiver was clearly knowing and voluntary.
He was thirty-two and was not under the influence of drugs or
alcohol when he entered his plea. The district judge questioned
him about the waiver of his appellate rights, and Williams stated
that he understood what rights he was waiving. The details of the
waiver were clearly set forth in the written plea agreement.
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In his plea agreement, Williams reserved the right to
appeal an upward departure from his guideline range. Here, he
attempts to challenge the calculation of his offense level as
violative of his Sixth Amendment rights. This issue lies within
the scope of the appellate waiver. Under Blick, the matter is not
reviewable on appeal.
We therefore grant the Government’s motion and dismiss
the appeal. 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
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