Filed: Jan. 24, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4769 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK LAMONT EVANS, a/k/a Shank, a/k/a Dechee Dan, a/k/a Big Head, a/k/a Debo, Defendant - Appellant. No. 09-5154 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MARCUS ANDREW WATKINS, a/k/a Andrew Sparkz, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:08-cr
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4769 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK LAMONT EVANS, a/k/a Shank, a/k/a Dechee Dan, a/k/a Big Head, a/k/a Debo, Defendant - Appellant. No. 09-5154 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MARCUS ANDREW WATKINS, a/k/a Andrew Sparkz, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:08-cr-..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4769
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK LAMONT EVANS, a/k/a Shank, a/k/a Dechee Dan, a/k/a
Big Head, a/k/a Debo,
Defendant - Appellant.
No. 09-5154
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCUS ANDREW WATKINS, a/k/a Andrew Sparkz,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-1; 1:08-cr-00024-jpj-pms-3)
Submitted: December 20, 2011 Decided: January 24, 2012
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Sandra B. Jelovsek, Johnson City, Tennessee; Keith N. Hurley,
KEITH N. HURLEY, P.C., Richmond, Virginia, for Appellants.
Timothy J. Heaphy, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Derrick Lamont Evans and Marcus Andrew Watkins pleaded
guilty to conspiracy to possess with intent to distribute and to
distribute cocaine and cocaine base (“crack”), in violation of
21 U.S.C. § 846 (2006). The district court sentenced Evans to
life imprisonment and sentenced Watkins to 240 months of
imprisonment, and they now appeal. The Government has asserted
the waiver of appellate rights contained in each Appellant’s
plea agreement with respect to their convictions. For the
reasons that follow, we dismiss Evans’ and Watkins’ appeals of
their convictions, vacate the sentences, and remand for
resentencing.
On appeal, Evans argues that his guilty plea was not
knowing and voluntary and Watkins argues that the district court
erred in denying his motion to withdraw his guilty plea.
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). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
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“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (citation omitted). To determine
whether a waiver is knowing and intelligent, we examine “the
totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. General,
278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks and citation omitted).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991). We
have thoroughly reviewed the record and conclude that Evans and
Watkins pleaded guilty knowingly and voluntarily and that their
appellate waivers are valid and enforceable. Moreover, the
issue Watkins seeks to raise falls squarely within the scope of
the appellate waiver.
Evans also raises two sentencing arguments on appeal
and the Government has not sought enforcement of the waiver with
respect to Evans’ sentencing arguments, or with respect to
Watkins’ sentence. Therefore we will review the Appellants’
sentences. Evans first argues that two of the convictions
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listed in the 21 U.S.C. § 851 (2006) notice, and used to enhance
the mandatory minimum for his offense to life imprisonment, were
not felonies punishable by a term of imprisonment exceeding one
year. 1 We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton,
564 F.3d 330,
335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.”
Gall, 552 U.S. at 51.
Under 21 U.S.C. § 841(b)(1)(A) (2006), current version
at 21 U.S.C.A. § 841(b)(1)(A) (West 2006 & Supp. 2011), a
defendant is subject to a statutory mandatory minimum term of
ten years of imprisonment unless he has sustained a prior
conviction for a felony drug offense, in which case the
statutory mandatory minimum becomes twenty years of
imprisonment. The mandatory minimums sentence is raised to life
1
Evans has not challenged on appeal whether the other
conviction listed in the § 851 notice, for delivering cocaine,
qualified as a felony drug offense.
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imprisonment if the defendant has sustained two or more such
prior convictions. A felony drug offense is defined in part as
an “offense punishable by imprisonment for more than one year
under any law . . . of a State.” 21 U.S.C. § 802(44) (2006).
Here, two of Evans’ prior convictions were for
possession and possession with intent to distribute marijuana
and possession of cocaine, Class I felonies under North Carolina
law, and Watkins’ conviction was for possession with intent to
sell cocaine, a Class H felony. At the time of each of these
state convictions, Evans’ prior record level was not above IV
and Watkins’ prior record level was II; the sentencing court in
each case found that Evans and Watkins should be sentenced
within the presumptive range of the applicable sentencing table
under N.C. Gen. Stat. § 15A-1340.17(c) (2007). Under North
Carolina law, both Evans and Watkins faced maximum terms of
imprisonment of ten months. See N.C. Gen. Stat.
§ 15A-1340.17(d) (2007). Therefore, neither Evans nor Watkins
could have received a term of imprisonment exceeding twelve
months for their prior convictions.
In United States v. Simmons, 648 F.3d 237 (4th Cir.
2011) (en banc), we determined that a prior offense is not
punishable by a term exceeding one year of imprisonment if the
defendant could not have actually received more than one year of
imprisonment for that offense, based on his prior criminal
6
history and other factors. As Evans could not have received a
term exceeding one year of imprisonment for either of the two
challenged prior state offenses, he only had one qualifying
predicate offense under § 841(b)(1)(A), not two or more.
Because the advisory Guidelines range was determined based on
the statutory mandatory minimum of life imprisonment rather than
twenty years of imprisonment, see U.S. Sentencing Guidelines
Manual § 5G1.1 (2010), Evans was sentenced based on an incorrect
Guidelines calculation and an inapplicable statutory mandatory
minimum.
In addition, as Watkins could not have received a term
exceeding one year of imprisonment for his prior state offense,
he did not have a qualifying felony under § 841(b)(1)(A). The
statutory mandatory minimum, however, was based on the enhanced
penalties that would have applied if Watkins had sustained a
qualifying felony. Therefore, both Evans’ and Watkins’
sentences are procedurally unreasonable. 2
Evans also argues that the district court violated his
Sixth Amendment rights by finding that he was accountable for
more than fifty grams of crack, thereby increasing the
2
In so finding, we do not fault the experienced district
judge, who relied upon then-binding unambiguous Circuit
authority, which we subsequently disavowed in Simmons, in
calculating the mandatory minimum sentences to which Evans and
Watkins were subject.
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applicable statutory minimum under § 841(b). However, Evans
admitted the threshold drug amount when he pleaded guilty to the
indictment, charging him with conspiracy to possess with intent
to distribute and distribute more than 500 grams of cocaine and
more than fifty grams of crack. See 21 U.S.C. § 841(b)(1)(A).
Therefore, as Evans admitted the minimum quantity of drugs for
which he was responsible, the court did not err in sentencing
Evans in accordance with his guilty plea.
Accordingly, we dismiss Evans’ and Watkins’ appeals of
their convictions, but vacate the sentences and remand for
resentencing. In light of our disposition regarding the
Appellants’ sentencing, we also grant the Government’s motion to
supplement the record and deny the motion to file a supplemental
brief as moot. 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,
VACATED IN PART,
AND REMANDED
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