Filed: Dec. 04, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIRT LIONEL BYNUM, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00242-CCB-1) Submitted: November 19, 2008 Decided: December 4, 2008 Before WILKINSON, KING, and SHEDD, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. James
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIRT LIONEL BYNUM, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00242-CCB-1) Submitted: November 19, 2008 Decided: December 4, 2008 Before WILKINSON, KING, and SHEDD, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. James ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIRT LIONEL BYNUM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00242-CCB-1)
Submitted: November 19, 2008 Decided: December 4, 2008
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Gregory Welsh, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kirt Lionel Bynum appeals from his conviction and 188-
month sentence after pleading guilty to possession with intent
to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) (2006). The Government has filed
a motion to dismiss the appeal, asserting that pursuant to the
appellate waiver contained in Bynum’s plea agreement, there is
no basis to challenge the sentence imposed. In response,
counsel for Bynum concedes that the Government’s motion to
dismiss should be granted. Bynum’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
he asserts there are no meritorious issues for appeal, but asks
this court to review whether Bynum’s guilty plea was valid and
whether his sentence was reasonable. Bynum has filed a pro se
supplemental brief in which he contends that: (1) the district
court failed to ensure he had reviewed the presentence report
(“PSR”) with counsel; (2) his attorney provided ineffective
assistance by failing to object to his career offender status;
(3) the Fed. R. Crim. P. 11 hearing was invalid; and (4) his
sentence was unreasonable.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990) (waiver
upheld as voluntarily and intelligently made). Whether a
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defendant has waived his right to appeal is an issue of law
subject to de novo review. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). A waiver will preclude appeal of a
specific issue if the record establishes that the waiver is
valid and that the issue is within the scope of that waiver.
United States v. Attar,
38 F.3d 727, 731-33 (4th Cir. 1994).
Bynum’s first claim is that the Rule 11 hearing was
inadequate because the district court failed to inform him that
he could not withdraw his plea should the court reject the
Government’s sentencing recommendations. Pursuant to Rule
11(c)(3)(B), if the government agrees to request a certain
sentence or sentencing range, or recommend that a particular
sentencing factor does or does not apply, the district court
“must advise the defendant that the defendant has no right to
withdraw the plea if the court does not follow the
recommendation or request.” Because Bynum did not move in the
district court to withdraw his guilty plea, any challenges to
the Rule 11 hearing are reviewed for plain error. See United
States v. Martinez, 277 F.3d 517, 524-25 (4th Cir. 2002).
During the plea colloquy, while the district court
informed Bynum that it was not a party to the plea agreement and
did not have to accept the Government’s sentencing
recommendations, the court failed to warn Bynum that its
decision not to accept the Government’s recommendations would
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not be grounds for withdrawing his guilty plea. However, Bynum
has presented no evidence to demonstrate that “but for the
error, he would not have entered the plea.” United States v.
Dominguez-Benitez, 542 U.S. 74, 83 (2004). The plea agreement
notified Bynum that the district court was not a party to the
plea agreement and that the court’s decision not to abide by the
stipulations contained in the agreement would not be grounds for
withdrawing the guilty plea. During the Rule 11 hearing, Bynum
stated that he had reviewed the plea agreement with his
attorney, understood each section, and was agreeing to the terms
voluntarily.
There is no indication in the record that the omission
by the district court affected Bynum’s decision to enter his
guilty plea, as Bynum has not identified any evidence
demonstrating the probability of a different result “sufficient
to undermine confidence in the outcome of the proceeding.”
Dominguez-Benitez, 542 U.S. at 83 (internal quotation marks and
citation omitted). Accordingly, we find that Bynum has failed
to demonstrate the district court’s error affected his
substantial rights, as the record establishes that Bynum
knowingly and voluntarily entered into his guilty plea.
Bynum’s next claim is that the district court failed
to verify that he and his attorney had read and discussed the
PSR. Pursuant to Fed. R. Crim. P. 32(i)(1)(A), the district
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court “must verify that the defendant and the defendant’s
attorney have read and discussed the presentence report and any
addendum to the report.” At the sentencing hearing, the
district court asked Bynum’s attorney whether he had reviewed
the PSR with his client; counsel replied that he had “read and
discussed it with [Bynum] extensively.” Despite counsel’s
assurances to the court, Bynum contends the district court was
required to address him personally with regard to this matter.
While the district court must determine the defendant has had an
opportunity to review the PSR with counsel, this determination
can be made by asking “[the] defendant, his lawyer, or both.”
See United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.
1988). Accordingly, we find the district court did not violate
Rule 32(i)(1)(A).
Bynum next contends his attorney erred in conceding
that the offenses identified by the Government at sentencing
were sufficient to establish he was a career offender, as
counsel did not consult with him regarding the validity of the
convictions or whether he was actually convicted of those
offenses. However, there is no evidence in the record to
support Bynum’s assertions. Because the record does not
conclusively demonstrate ineffective assistance, this claim
should be raised in a 28 U.S.C. § 2255 (2000) motion rather than
on direct appeal. See United States v. King, 119 F.3d 290, 295
5
(4th Cir. 1997); United States v. DeFusco, 949 F.2d 114, 120-21
(4th Cir. 1991).
Finally, Bynum contends his sentence was unreasonable.
However, this claim is squarely within the scope of the
appellate waiver, as Bynum waived his right to appeal “from any
sentence within or below the advisory guidelines range resulting
from an adjusted base offense level of 31.” See United
States v. Blick, 408 F.3d 162, 172-73 (4th Cir. 2005). Based on
an offense level of 31 and a criminal history of VI, Bynum’s
Sentencing Guideline range was 188 to 235 months. Accordingly,
because Bynum’s sentence of 188 months was within the Guidelines
range, his claim is barred by the appellate waiver.
Accordingly, we grant the Government’s motion to
dismiss in part as it relates to Bynum’s sentence. As for
Bynum’s claims regarding the validity of his Rule 11 hearing,
the district court’s failure to abide by Rule 32(i)(1)(A), and
ineffective assistance of counsel, we deny the Government’s
motion to dismiss as to those claims, but nonetheless affirm the
district court’s judgment. 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;
AFFIRMED IN PART
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