Filed: Jun. 24, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4192 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELANTE ANTWYNE ROPER, a/k/a Puff, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00059-JPB-DJJ-1) Submitted: June 3, 2010 Decided: June 24, 2010 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed in part and dismissed in part
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4192 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELANTE ANTWYNE ROPER, a/k/a Puff, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00059-JPB-DJJ-1) Submitted: June 3, 2010 Decided: June 24, 2010 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed in part and dismissed in part b..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELANTE ANTWYNE ROPER, a/k/a Puff,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00059-JPB-DJJ-1)
Submitted: June 3, 2010 Decided: June 24, 2010
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Deirdre H. Purdy, Chloe, West Virginia, for Appellant. Paul
Thomas Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Delante Roper appeals his conviction and 322-month
sentence imposed after he pled guilty, pursuant to a plea
agreement, to one count of distribution of more than five grams
of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006), and one count of using and carrying a firearm
in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (2006). On appeal, counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal, but
questioning whether the district court abused its discretion in
denying Roper’s motion to withdraw his plea, designating him as
a career offender, and denying his motion for a variance
sentence. Roper was advised of his right to file a pro se
supplemental brief, but has not filed a brief. The Government
has moved to dismiss Roper’s appeal based on a waiver of
appellate rights in his plea agreement.
Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands the nature of,
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b). “In reviewing the adequacy of compliance with Rule 11,
2
this Court should accord deference to the trial court’s decision
as to how best to conduct the mandated colloquy with the
defendant.” United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).
Pursuant to a plea agreement, a defendant may waive
the right to appeal if that waiver is knowing and intelligent.
United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).
The issue of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
This court will enforce a valid waiver so long as “the issue
being appealed is within the scope of the waiver.” United
States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005).
Here, the plea agreement contained a very broad
appellate waiver as to Roper’s sentence. The waiver stated
that:
[d]efendant is aware that Title 18, United States
Code, Section 3742 affords a defendant the right to
appeal the sentence imposed. Acknowledging all this,
and in exchange for the concessions heretofore made by
the United States in this plea agreement, Defendant
knowingly and voluntarily waives the right to appeal
any sentence which is within the maximum provided in
the statute of conviction or in the manner in which
that sentence was determined on any ground whatever,
including those grounds set forth in Title 18, United
States Code, Section 3742. Defendant also waives his
right to challenge his sentence or the manner in which
it was determined in any collateral attack, including
but not limited to, a motion brought under Title 28,
United States Code, Section 2255 (habeas corpus).
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At the Rule 11 hearing, the Government summarized the
negotiated terms in the plea agreement, including the appeal
waiver. The district court confirmed that Roper understood the
terms of the agreement, including the appeal waiver, and that he
had reviewed it with his attorney. Thus, we conclude that the
appellate waiver is valid and enforceable as to Roper’s
sentence, and we grant the motion to dismiss as to the sentence.
However, because the waiver provision does not preclude Roper’s
challenge to the validity of his conviction, it does not
foreclose our consideration of his claim that the district court
erred by denying his motion to withdraw his guilty plea.
This court reviews the district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A
defendant may withdraw a guilty plea prior to sentencing if he
“can show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). A fair and just reason to
withdraw a plea is one that essentially challenges the fairness
of the Rule 11 proceeding. United States v. Puckett,
61 F.3d
1092, 1099 (4th Cir. 1995) (citing United States v. Lambey,
974
F.2d 1389, 1394 (4th Cir. 1992)). “The most important
consideration in resolving a motion to withdraw a guilty plea is
an evaluation of the Rule 11 colloquy at which the guilty plea
was accepted,” and a properly conducted Rule 11 proceeding
4
“raises a strong presumption that the plea is final and binding”
and “leaves a defendant with a very limited basis upon which to
have his plea withdrawn.” United States v. Bowman, 348 F.3d
408, 414 (4th Cir. 2003); see United States v. Wilson,
81 F.3d
1300, 1307 (4th Cir. 1996) (noting “key” to whether motion to
withdraw should be granted is “whether or not the Rule 11
proceeding was properly conducted”).
We have articulated the following nonexclusive list of
factors for consideration by the district court in deciding
whether to grant a withdrawal motion: (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 the defendant has had the 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. United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991).
On appeal, Roper argues that his guilty plea was
invalid because counsel failed to fully explain the rights he
would waive by pleading guilty and counsel threatened and
coerced him into entering his plea by advising that Roper had no
defense and faced a potential life sentence absent a plea
5
agreement. Thus, Roper contends that his plea was not knowing
and intelligent.
Roper has not presented any evidence or argument to
demonstrate that the district court abused its discretion.
Indeed, the record before this court reveals that the district
court substantially complied with the Fed. R. Crim. P. 11
requirements during the plea colloquy. The transcript of
Roper’s Rule 11 hearing reveals that the district court ensured
that Roper’s plea was knowing and voluntary, that he understood
the rights he was giving up by pleading guilty and the sentence
he faced, and that he committed the offenses to which he was
pleading guilty. Roper also confirmed during the hearing that
he fully understood the ramifications of his guilty plea, and
that no one made promises to him outside those made by the
Government in his plea agreement.
We conclude that Roper’s guilty plea was knowing and
voluntary, and the district court did not abuse its discretion
by denying Roper’s motion to withdraw his guilty plea.
Accordingly, we grant the motion to dismiss with regard to
Roper’s sentence, deny the motion as to his conviction, and
affirm the conviction. We deny Roper’s motion for supplemental
briefing.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
6
appeal. This court requires that counsel inform Roper, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Roper 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 Roper. 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.
AFFIRMED IN PART
AND DISMISSED IN PART
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