United States v. Alston

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4235

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEE ANDREW ALSTON, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-315; CR-04-316)

Submitted: March 8, 2006 Decided: April 10, 2006

Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Danielle Bess Obiorah, LAW OFFICES OF DANIELLE BESS OBIORAH, P.C.,
Charlotte, North Carolina, for Appellant. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Lee Andrew Alston, Jr., pled guilty to two counts of

armed bank robbery, 18 U.S.C. § 2113(d) (2000), and one count of

carrying and using, by brandishing, a firearm during and in

relation to a crime of violence, 18 U.S.C.A. § 924(c)(1)(A) (West

2000 & Supp. 2005). Alston was sentenced to seventy-eight months

in prison for the robberies. The sentences run concurrently. He

also was sentenced to a consecutive sentence of eighty-four months

for the firearm offense. Alston’s attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), raising one

issue but stating that, in her opinion, Alston validly waived his

appellate rights and there are no meritorious issues for appeal.

Alston was advised of his right to file a pro se informal brief,

but did not file such a brief. The United States argues on appeal

that this court must enforce the waiver-of-appellate rights

provision in Alston’s plea agreement. We agree and dismiss the

appeal.

I

Alston’s written plea agreement contained the following

provision:

It is further agreed . . . that in exchange for the
government’s agreement to dismiss the remaining counts of
the Indictments . . ., the defendant expressly waives the
right to appeal whatever sentence is imposed on any
ground, including any appeal right conferred by Title 18,
United States Code, Section 3742(a) . . ., excepting the

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 defendant’s right to appeal based upon grounds of
ineffective assistance of counsel or prosecutorial
misconduct not known to the defendant at the time of the
defendant’s guilty plea.

The plea agreement set forth the minimum and maximum sentence that

Alston faced and made clear that the sentencing guidelines applied.

Alston, through counsel, admitted that he was guilty of the

offenses to which he was pleading guilty.

At his Fed. R. Crim. P. 11 hearing, the district court

ascertained that Alston was thirty-one years old and a high school

graduate. Alston was not under the influence of drugs or alcohol.

The court identified the rights that Alston waived by going to

trial, and specifically mentioned the right to appeal. The court

stated:

Now part of . . . your plea agreement[] includes a
limited right of appeal. . . . In exchange for the
government dismissing other counts of [the] indictment[],
. . . you give up your right to appeal whatever sentence
is imposed, except upon four grounds: ineffective
assistance of counsel, misconduct by the prosecution, not
known to you at the time of your guilty plea; any
sentence in excess of the statutory maximum, or any
sentence based on an unconstitutional factor.

Alston informed the court that he understood this waiver. The

district court concluded that the plea was voluntary and

intelligent and that there was a factual basis for the plea. The

court accordingly found Alston guilty of the robberies and the

firearm offense.

Alston’s presentence report (psr) calculated a total

offense level of 26 for the robberies. Alston’s criminal history

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category was III, for a guideline range of 78-97 months. The psr

also stated that Alston was statutorily subject to a consecutive

sentence of at least seven years for the firearm offense. Alston

objected to the psr, claiming that both the offense level and

criminal history category were incorrectly calculated.

The district court overruled both objections at

sentencing. The court observed that the guidelines were advisory

and stated that it had considered “all of the factors that the

Court considers in determining a reasonable sentence.” Alston was

sentenced to seventy-eight months in prison for each robbery; those

sentences run concurrently. He also was sentenced to a consecutive

seven-year sentence for the firearm offense.

II

In the Anders brief, counsel contends that the district

court erred when it imposed a sentence under the mandatory

guidelines scheme. However, counsel concedes that there are no

meritorious issues for appeal. The Government replies that Alston

waived his right to appeal.

This case is governed by our recent decision in United

States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick

was whether a waiver-of-appellate rights provision in a plea

agreement was enforceable after the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005). We employed a two-

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part analysis to decide the issue. First, we considered whether

the waiver was knowing and voluntary. Having decided that it was,

we asked whether the issues raised on appeal were within the scope

of that waiver. They were, and the appeal was subject to

dismissal. Blick, 408 F.3d at 169-73.

This court reviews de novo the validity of a waiver.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether

a waiver of the right to appeal is knowing and intelligent depends

upon the facts and circumstances surrounding its making, including

the defendant’s background, experience, and conduct. United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is

ineffective if the district court fails to question the defendant

about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.

1991), unless other evidence in the record shows that the waiver

was informed and voluntary. Davis, 954 F.2d at 186.

Here, Alston’s waiver was clearly knowing and voluntary.

He was thirty-one, a high school graduate, and not under the

influence of drugs or alcohol when he entered his plea. The

district judge questioned him about the waiver of his appellate

rights, and Alston stated that he understood this waiver. The

details of the waiver were clearly set forth in the written plea

agreement, which Alston signed after consultation with his lawyer.

In his plea agreement, Alston waived the right to appeal

his sentence, reserving the right to appeal a limited number of

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issues. Here, he contends that the district court erred in

treating the guidelines as mandatory. This is an issue that lies

within the scope of the appellate waiver and, under Blick, the

matter is not reviewable on appeal.

As required by Anders, we have reviewed the entire record

on appeal and have found no meritorious issues for appeal. We

therefore dismiss the appeal. The court requires that counsel

inform her client, in writing, of his right to petition the Supreme

Court of the United States for further review. If the client

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 the client. 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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