UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4356
SAMUEL HILL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CR-10010)
Submitted: December 18, 2003
Decided: January 22, 2004
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Marc Seguinot, SEGUINOT LAW FIRM, McLean, Virginia, for
Appellant. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HILL
OPINION
PER CURIAM:
Samuel Hill was convicted on one count each of conspiracy to dis-
tribute crack cocaine and possession of a firearm in relation to a drug
trafficking offense, in violation of 21 U.S.C. § 841(a)(1) (2000), 18
U.S.C. § 924(c) (2000), respectively. The district court sentenced Hill
to 120 months’ imprisonment on the drug conviction, and 60 months’
imprisonment on the firearm conviction, to be served consecutively,
followed by 60 months of supervised release on each conviction, to
run concurrently. On appeal, Hill challenges the sufficiency of the
evidence to support the firearm conviction.
Hill pled guilty pursuant to a written agreement in which he stipu-
lated to the sufficiency of the evidence to convict him of both
charges. The indictment was based on a series of six controlled pur-
chases of crack cocaine from Hill. The government proffered that it
could offer the testimony of three confidential informants that Hill
visibly possessed and displayed a firearm while selling them crack
cocaine, and that Hill admitted ownership of drugs and a firearm
recovered from his home immediately after his arrest. At his Fed. R.
Crim. P. 11 hearing, Hill attested that he understood the nature of his
offenses, the rights he was giving up in pleading guilty, the manda-
tory minimum and maximum sentences he faced, and the fact that the
offenses were subject to the United States Sentencing Guidelines.
Further, he responded in the affirmative to the district court’s question
of whether he had "in [his] possession a firearm at the time of the
drugs." While trial counsel unsuccessfully argued that the absence of
a firearm at the time of arrest warranted a downward departure, he did
not contest the sufficiency of the evidence to support Hill’s guilty
plea or conviction.
In support of his challenge to the sufficiency of the evidence on the
§ 924(c) conviction, Hill relies on the facts that there was no firearm
in his possession at the time of his arrest, the firearm found in the
bureau drawer at his home was without ammunition, and while drugs
were found in a bathroom, they were located several rooms away
from the inoperative firearm. He asserts the government’s proffer
UNITED STATES v. HILL 3
failed to present a sufficient factual basis to support the § 924(c)
charge against him and, therefore, could not support his guilty plea.
We find that Hill waived his right to appeal the sufficiency of the
evidence to support the firearm conviction by virtue of his written
plea agreement, United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990), and his stipulation to the government’s proffer of the evidence.
United States v. Muse, 83 F.3d 672, 679 (4th Cir. 1996). Moreover,
because the sentence imposed by the district court is neither outside
the applicable statutory maximum, nor is it based on a constitutionally
impermissible factor, he cannot successfully challenge the waiver.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
While Hill relies on Bousley v. United States, 523 U.S. 614 (1998),
to assert that his waiver is excused because he is actually innocent of
the § 924(c) charge, his reliance is misplaced. This is not a case where
the plea could be deemed involuntary because Hill was misinformed
about the elements of a § 924(c) offense, nor could it be deemed unin-
telligent because Hill was not on notice as to the true nature of the
charge against him. Bousley, at 618. To the contrary, Hill has failed
to demonstrate that his plea was anything other than knowing and
intelligent.
Accordingly, we dismiss Hill’s appeal. We dispense with oral argu-
ment because the facts and legal conclusions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
DISMISSED