UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE R. WOODBURY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-03-501-AW)
Argued: March 17, 2006 Decided: May 17, 2006
Before NIEMEYER, LUTTIG,1 and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
ARGUED: Michael Alan Wein, Greenbelt, Maryland, for Appellant.
Barbara Suzanne Skalla, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Allen F. Loucks, United States Attorney, Baltimore, Maryland,
Deborah A. Johnston, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
1
Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed. The
decision is filed by a quorum of the panel pursuant to 28 U.S.C. §
46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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PER CURIAM:
Jermaine R. Woodbury pleaded guilty, pursuant to a plea
agreement, to distribution of 50 grams or more of cocaine base
(crack), in violation of 21 U.S.C. § 841(a), and the district court
sentenced him as a career offender to a term of 151 months
imprisonment.2 The court also imposed an alternative discretionary
sentence of 151 months imprisonment under 18 U.S.C. § 3553(a),
taking the Sentencing Guidelines as advisory. Under the terms of
his plea agreement, Woodbury waived his right to “appeal whatever
sentence was imposed, including any issues that relate to the
establishment of the guideline range, reserving only the right to
appeal from an upward or downward departure from the guideline range
that is established at sentencing.” He also reserved the right to
appeal a sentence that exceeded the maximum term provided by
statute.
Despite the waiver, Woodbury now seeks to appeal his career
offender status, arguing that the waiver is not enforceable in light
of the Supreme Court’s subsequent decision in Shepard v. United
States, 544 U.S. 13 (2005) (holding that Apprendi3 exception for
fact of a prior conviction limits sentencing court to charging
2
The district court departed downward from the Sentencing
Guidelines range of 262-327 months under U.S.S.G. § 4A1.3, p.s.
(2003) (departure for overstated criminal history), and U.S.S.G. §
5K1.1, p.s. (departure for substantial assistance).
3
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
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document, plea agreement and colloquy, statutory definition, or
defendant’s admissions to determine a disputed fact about a prior
conviction). We dismiss the appeal.
We review the validity of a waiver de novo, United States v.
Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will uphold a waiver
of appellate rights if the waiver is valid and the issue being
appealed is within the scope of the waiver. United States v. Attar,
38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is valid if the
defendant’s agreement to the waiver was knowing and voluntary.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). Generally,
if the district court fully questions a defendant regarding the
waiver of his right to appeal during the colloquy under Federal Rule
of Criminal Procedure 11, the waiver is both valid and enforceable.
Wessells, 936 F.2d at 167-68. In United States v. Blick, 408 F.3d
162 (4th Cir. 2005), a case involving a waiver virtually
indistinguishable from the waiver in this case, we held that a
waiver of the right to appeal contained in a plea agreement that was
accepted before the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), was not invalidated by the change in
the law effected by Booker because the waiver was valid and the
issue raised was within the scope of the waiver. Blick, 408 F.3d
at 172-73.
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Here, the record reveals that the district court conducted a
thorough Rule 11 inquiry and specifically questioned Woodbury about
whether he understood that he was waiving his appellate rights.
Despite Woodbury’s limited education and intellectual ability, the
record reveals that he was able to understand the consequences of
the waiver. We conclude that the waiver is valid.
Woodbury contends that his waiver of appeal rights is not
enforceable, first, because he did not agree to a sentence that he
views, post-Shepard, as an incorrect, unconstitutional, and illegal
application of the Sentencing Guidelines and the “Career Offender
Statute.”4 He also contends that certain provisions of his plea
agreement preclude a valid waiver of the district court’s
determination that he is a career offender. Finally, he contends
that the waiver does not preclude a challenge to his sentence on
constitutional grounds, citing Attar, 38 F.3d at 732.
Woodbury’s arguments are foreclosed by Blick, which rejected
the defendant’s claim that he could not have knowingly waived his
rights under Booker before it was decided. Blick, 408 F.3d at 170-
71. Like the defendant in Blick, Woodbury was sentenced under the
pre-Booker and pre-Shepard guidelines, exactly as contemplated in
his plea agreement. Blick, 408 F.3d at 172-73. In Blick, we
4
Woodbury is referring to 28 U.S.C. § 994(h), which directs
the Sentencing Commission to assure that the guidelines specify a
sentence at or near the maximum authorized prison term for adults
who commit a third felony drug offense or violent crime.
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distinguished the defendant’s situation from the one presented in
Attar and United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir.
1995), where “the errors allegedly committed by the district courts
were errors that the defendants could not have reasonably
contemplated when the plea agreements were executed.” Blick, 408
F.3d at 172.
Woodbury agreed to forego his right to appeal the district
court’s determination of his career offender status, agreed to give
up his right to appeal “whatever sentence is imposed, including any
issues that relate to the establishment of the guideline range,” and
reserved only the right to appeal a departure or a sentence that
exceeded the statutory maximum. Woodbury’s claim that the district
court erred in sentencing him as a career offender falls squarely
within the scope of his waiver.
Accordingly, we dismiss the appeal.
DISMISSED
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