UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4913
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY RAY DANNER, a/k/a Caesar,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-00-15; CR-02-96)
Submitted: August 26, 2005 Decided: September 21, 2005
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney, D.
Scott Broyles, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jeremy Ray Danner pled guilty, on a written plea
agreement, to conspiracy to possession with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
846 (2000), and to willful failure to appear for sentencing, in
violation of 18 U.S.C. §§ 3146(a)(1),(b), 3147 (2000). The
district court sentenced Danner to 240 months’ imprisonment on the
conspiracy conviction, and a 120-month term of imprisonment on the
failure to appear conviction, to run consecutively to one another,
for a total sentence of 360 months’ imprisonment.1 Danner asserts
on appeal that the district court erred in refusing to allow him to
withdraw his guilty plea, and contends that his sentence is
unconstitutional.2
1
The court also announced an alternative sentence, in the
absence of the federal sentencing guidelines, of 281 months’
imprisonment, pursuant to this court’s directive in United States
v. Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381
F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051
(2005).
2
Specifically, Danner seeks to raise the following issues on
appeal: (1) the district court abused its discretion in denying
his motion to withdraw his guilty plea; (2) the district court
erred in its findings as to the amount of drugs for which Danner
was responsible; (3) the district court’s consideration of hearsay
evidence at sentencing violated his Sixth Amendment right to
confrontation under Crawford v. Washington, 541 U.S. 36 (2004); (4)
the district court clearly erred in denying Danner a downward
departure for acceptance of responsibility on his failure to appear
charge; and (5) his sentence is invalid in light of United States
v. Booker, 125 S. Ct. 738 (2005). In addition, Danner seeks to
challenge the district court’s failure to distinguish between crack
and cocaine base for sentencing purposes, citing United States v.
Edwards, 397 F.3d 570 (7th Cir. 2005).
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Danner contends that the district court erred in denying
his motion to withdraw his guilty plea, asserting that the plea was
not knowing and voluntary because he was not properly informed
about Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
implications on his sentence, prior to entering his plea. Our
review of the record discloses that the district court properly
determined that Danner clearly was aware of Apprendi and its
implications at the time he pled guilty. Moreover, even assuming,
arguendo, that Danner had not been aware of Apprendi at the
pertinent time, a post-plea change in the law does not provide a
valid basis for withdrawing an otherwise valid plea. See United
States v. Johnson, 410 F.3d 137, 152-53 (4th Cir. 2005); see also
United States v. Blick, 408 F.3d 162, 170-73 (4th Cir. 2005).
Thus, the district court did not abuse its discretion in denying
Danner’s motion to withdraw his guilty plea. See United States v.
Craig, 985 F.2d 175, 178 (4th Cir. 1993).
Moreover, we note that Danner signed a plea agreement in
which he waived his rights to contest his conviction and sentence
except as to ineffective assistance of counsel and prosecutorial
misconduct claims. Whether the defendant has effectively waived
his right to appeal is an issue we review de novo. United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). When the United
States seeks to enforce a waiver provision, as it does here, this
court will enforce the waiver to preclude a defendant from
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appealing an issue where the record demonstrates that the waiver is
valid and that the issue sought to be appealed is within the scope
of that waiver. Blick, 408 F.3d at 172.
Here, during Danner’s Fed. R. Crim. P. 11 plea colloquy,
the district court queried Danner and his attorney with regard to
the plea agreement in general, and Danner agreed to the specific
appellate waiver provision. In addition, Danner acknowledged that
he understood the terms of the agreement. The district court found
that Danner entered the plea knowingly and voluntarily. In
addition, the district court provided Danner with two opportunities
to brief additional issues relative to his plea, thoroughly
considered Danner’s arguments in support of his motion to withdraw
his plea,3 and reaffirmed its determination that Danner’s plea was
valid under the law. We find, based upon our independent review of
the record, that the meaning of the plea agreement and the waiver
provision is clear. We conclude, therefore, the waiver is valid.
As the issues Danner seeks to raise are not based on ineffective
assistance of counsel or prosecutorial misconduct, they are
3
Danner asserted that: (1) he was misled by counsel regarding
the amount of prison time he was facing; (2) he was not guilty of
involvement with 1.5 kilos of crack cocaine; (3) he did not
understand the sentencing discrepancy between cocaine and cocaine
base at the time he entered his guilty plea; (4) he never sold
crack cocaine; (5) he was not adequately advised of the Apprendi
decision; and (6) he only dealt directly with undercover agents and
therefore was not guilty of conspiracy.
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precluded by the scope of the waiver provision in his plea
agreement.
Accordingly, although we grant Danner’s motion to file a
supplemental brief, we dismiss his appeal. 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
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