Filed: Aug. 17, 2012
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4474 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHAD EMORY JONES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (5:10-cr-00219-BO-2) Submitted: July 12, 2012 Decided: August 17, 2012 Before MOTZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in part by un
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4474 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHAD EMORY JONES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (5:10-cr-00219-BO-2) Submitted: July 12, 2012 Decided: August 17, 2012 Before MOTZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in part by unp..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4474
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHAD EMORY JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (5:10-cr-00219-BO-2)
Submitted: July 12, 2012 Decided: August 17, 2012
Before MOTZ and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
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Unpublished opinions are not binding precedent in this circuit.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:
Chad Emory Jones appeals the 150-month sentence
imposed following his guilty plea to aiding and abetting the
distribution of more than five grams of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2
(2006), and being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). On appeal,
Jones’ first attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal, but asking this court to review
the underlying proceedings for error. Although advised of his
right to do so, Jones declined to file a pro se supplemental
brief. The Government did not file a response.
During our initial Anders review, we discerned three
nonfrivolous issues and directed the parties to submit merits
briefs on those points. We further appointed new counsel to
represent Jones. In accordance with our directive, Jones’ new
attorney submitted a comprehensive brief addressing the validity
and enforceability of the appeal waiver and the various
sentencing issues identified in our briefing order. The
Government now moves to dismiss the appeal as to Jones’
sentence, arguing that it is precluded by the appeal waiver in
Jones’ plea agreement. Jones counters that the waiver provision
is not enforceable because the Government breached the plea
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agreement at sentencing and, alternatively, that his acceptance
of the appeal waiver was coerced.
It is well settled that an appeal waiver cannot
preclude consideration of a claim that the Government breached
the plea agreement. United States v. Dawson, 587 F.3d 640, 644
n.4 (4th Cir. 2009). Thus, we reject the Government’s motion to
dismiss as to Jones’ claim of a purported breach of the plea
agreement at sentencing. However, for the reasons discussed
herein, we hold that Jones’ breach claim fails, on the merits,
because he cannot demonstrate that the breach affected his
substantial rights. And because the appeal waiver is otherwise
valid, we grant the motion to dismiss the appeal as to all
remaining issues relevant to Jones’ sentence. Finally, we
affirm Jones’ convictions.
Jones first argues the Government breached the plea
agreement by failing to fulfill its express promise to advise
the sentencing court of the “full extent” of his cooperation and
that this breach renders the waiver inoperative. Because Jones
did not raise this breach claim in the district court, appellate
review of this issue is for plain error. Puckett v. United
States, 556 U.S. 129, 133-34 (2009);
Dawson, 587 F.3d at 645.
To prevail, Jones must show that an error occurred, the error
was plain, the error affected his substantial rights and, if not
corrected, the error would seriously affect the fairness,
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integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 732-37 (1993).
Plea agreements are grounded in contract law, and both
parties are entitled to the benefits of their bargain. United
States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001). Where an
agreement is ambiguous in its terms, the terms must be construed
against the Government. United States v. Harvey,
791 F.2d 294,
303 (4th Cir. 1986). However, in enforcing agreements, the
Government is held only to those promises it actually made.
Dawson, 587 F.3d at 645.
The Government concedes that such an explicit promise
was made here, which indeed went unfulfilled. Thus, there is no
question as to the breach, and the breach is plain. As
discussed earlier, Jones’ waiver of his right to appeal does not
preclude appellate review of this issue. However, as to the
merits of this claim, the Government persuasively argues that
this breach did not affect Jones’ substantial rights because
there is no “nonspeculative basis in the record to conclude that
the district court would have imposed a lower sentence but for
the [breach].” United States v. Knight, 606 F.3d 171, 180 (4th
Cir. 2010). We agree with the Government and therefore affirm
as to this aspect of Jones’ sentence.
The Supreme Court has clarified that, under the plain
error standard, when the rights acquired by the defendant under
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the plea agreement relate to sentencing, “the ‘outcome’ he must
show to have been affected is his sentence.” Puckett, 556 U.S.
at 142 n.4. This Jones does not endeavor to do. Jones relies
instead on the “fundamental” nature of the error that was the
Government’s breach to satisfy the third prong of the plain
error inquiry. But this, standing alone, is insufficient, and
we discern no nonspeculative basis in the record on which we
could conclude that the district court would have imposed a
lower sentence had the Government fulfilled its obligation. See
Knight, 606 F.3d at 180. Thus, while appellate consideration of
this claim is not foreclosed by the appeal waiver, we hold that
the claim nonetheless fails under the plain error standard.
Accordingly, the motion to dismiss is denied as to this claim,
and we instead reject it on the merits.
We next consider Jones’ alternative contention that
the waiver is invalid because he was coerced into accepting it,
and thus that it does not bar appellate review of his claims
pertaining to the particular sentence the court imposed. 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 Cir. 2005). An appeal waiver is valid if the defendant
knowingly and intelligently agreed to it.
Id. at 169.
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To determine whether a waiver is knowing and
intelligent, we examine the background, experience, and conduct
of the defendant. United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995); United States v. Davis,
954 F.2d
182, 186 (4th Cir. 1992). Ultimately, however, the issue is
“evaluated by reference to the totality of the circumstances.”
United States v. General,
278 F.3d 389, 400 (4th Cir. 2002).
Generally, if a district court fully questions a defendant
regarding the waiver of appellate rights during the Fed. R.
Crim. P. 11 colloquy, the waiver is valid and enforceable.
United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005).
Our review of the record leads us to conclude that
Jones knowingly and voluntarily waived his right to appeal his
sentence. Although Jones argues that his acceptance of the
waiver resulted from the inherently coercive plea bargaining
process, this contention runs contrary to our established
precedent. We have previously rejected an “unequal bargaining
position” contention with regard to appellate waivers, see
United States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006), and
have upheld appeal waivers with respect to sentences that were
not determined at the time of the plea. See United States v.
Brown,
232 F.3d 399, 404-06 (4th Cir. 2000) (upholding waiver of
right to appeal “whatever sentence is imposed”). Finally, we
note that all of the particular sentencing issues raised in this
6
appeal fall within the ambit of the appeal waiver.
Specifically, the waiver precludes an appeal of any within-
Guidelines sentence the court imposed, on any ground. There is
no dispute that the sentence Jones received was within his
Guidelines range. For these reasons, we grant the Government’s
motion to dismiss, in part, and dismiss the appeal of Jones’
sentence in part.
Jones’ appeal waiver, however, does not preclude an
appeal of his convictions. Because Jones did not challenge the
validity of his guilty plea in the district court, we review
only for plain error. United States v. Martinez, 277 F.3d 517,
524–27 (4th Cir. 2002). Our review of the record reveals that
the district court substantially complied with the dictates of
Rule 11 and committed no error warranting correction on plain
error review. We therefore affirm this portion of the judgment.
In accordance with Anders, we have reviewed the entire
record in the case and have found no other potentially
meritorious issues for appeal that fall outside the scope of the
appellate waiver. We therefore dismiss in part and affirm in
part. We require that counsel inform Jones, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Jones 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
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representation. Counsel’s motion must state that a copy thereof
was served on Jones. 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;
DISMISSED IN PART
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