Filed: Sep. 09, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4953 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CONSUELO ANTONIO WASHINGTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:12-cr-00050-BO-1) Submitted: August 30, 2013 Decided: September 9, 2013 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Dismissed in part; affirmed in part by unpublished pe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4953 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CONSUELO ANTONIO WASHINGTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:12-cr-00050-BO-1) Submitted: August 30, 2013 Decided: September 9, 2013 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Dismissed in part; affirmed in part by unpublished per..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4953
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CONSUELO ANTONIO WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00050-BO-1)
Submitted: August 30, 2013 Decided: September 9, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Consuelo Antonio Washington was sentenced to 144
months in prison after pleading guilty, pursuant to a written
plea agreement, to one count of possession with intent to
distribute cocaine base. As part of his plea agreement,
Washington waived the right to appeal his sentence as long as it
did not exceed the Guidelines range established at sentencing.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal but questioning whether the
district court improperly relied upon hearsay when calculating
Washington’s Guidelines range. The Government has moved to
dismiss Washington’s appeal, insofar as it challenges his
sentence, asserting that he waived the right to appeal his
sentence in the plea agreement. Although informed of his right
to do so, Washington has not filed a pro se supplemental brief.
We dismiss in part and affirm in part.
We review de novo whether a defendant has effectively
waived the right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). An appellate waiver must be “the
result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones,
71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citation
omitted). Generally, if a court fully questions a defendant
2
regarding the appellate waiver during the Rule 11 colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005).
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Washington
knowingly and intelligently agreed to the waiver of appellate
rights as set forth in the plea agreement. During the Rule 11
colloquy, the court reviewed the plea agreement, including the
waiver provision, with Washington, and Washington affirmed that
he understood those terms. Moreover, Washington does not
contest the validity of the waiver either in his Anders brief or
in his response to the Government’s motion to dismiss. Because
Washington challenges the procedural reasonableness of his
below-Guidelines sentence, the issue he seeks to raise on appeal
falls squarely within the scope of the appellate waiver.
Accordingly, we grant the Government’s motion to dismiss
Washington’s appeal of his sentence.
The appellate waiver, however, does not preclude this
court’s review of Washington’s conviction pursuant to Anders.
Because Washington did not move to withdraw his guilty plea in
the district court or raise any objections to the Rule 11
colloquy, the colloquy is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002). Our
review reveals that, while the district court’s Rule 11 hearing
3
was truncated and incomplete, the record does not support a
finding of plain error, given Washington’s beneficial plea
agreement, below-Guidelines sentence, and failure to give any
indication that his plea was anything but knowing and voluntary.
See United States v. Massenburg, 564 F.3d 337, 343 (4th Cir.
2009) (finding that defendant “must show a reasonable
probability that, but for the error, he would not have entered
the plea”).
In accordance with Anders, we have reviewed the record
in this case and have found no unwaived meritorious issues for
appeal. We therefore affirm Washington’s conviction. This
court requires that counsel inform Washington, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Washington 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 Washington. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
4
