UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN LORENZO HASKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-05-6)
Submitted: June 19, 2006 Decided: September 7, 2006
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Sofie W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilmington, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marvin Lorenzo Haskins pled guilty to one count of
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000), pursuant to a written plea agreement. The
district court determined Haskins satisfied the requirements for
enhancement under the Armed Career Criminal Act (“ACCA”) and
sentenced Haskins to 180 months’ imprisonment. We affirm in part
and dismiss in part.
On appeal, Haskins contends the district court erred in
its application of the ACCA. The Government, however, argues this
claim is precluded by the waiver of appellate rights contained in
Haskins’s plea agreement, according to which he waived his right
“to appeal whatever sentence is imposed, including any issues that
relate to the establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in excess of the
applicable advisory Guideline range that is established at
sentencing . . . .”
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether a defendant has
effectively waived the right to appeal is an issue of law we review
de novo. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992).
Where, as here, the United States seeks enforcement of an
appeal waiver and there is no claim that the United
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States breached its obligations under the plea agreement,
we will enforce the waiver to preclude a defendant from
appealing a specific issue if the record establishes that
the waiver is valid and that the issue being appealed is
within the scope of the waiver.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (internal
citations omitted). An appeal waiver is valid if the defendant
knowingly and intelligently agreed to waive his right to appeal.
Id. at 169. However, “[a]n appeal waiver is not knowingly or
voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision of the plea
agreement during the Rule 11 colloquy and the record indicates that
the defendant did not otherwise understand the full significance of
the waiver.” United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005) (internal quotations omitted).
The language in the plea agreement is clear and
unambiguous. During the Rule 11 hearing, the district court
specifically questioned Haskins regarding the appeal waiver, and
Haskins responded that he understood its effects. Additionally,
Haskins concedes he was informed of the penalties that could be
imposed as a result of his guilty plea, including the effect of an
enhancement under the ACCA. We conclude the appeal waiver is valid
and enforceable and that Haskins’s challenge to the district
court’s enhancement under the ACCA clearly falls within the scope
of the waiver. Therefore, we dismiss the component of Haskins’s
appeal attacking his sentence.
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Haskins also contends the district court erred in its
denial of his pro se motion to withdraw his guilty plea. A
defendant may withdraw a guilty plea prior to sentencing if he “can
show a fair and just reason for requesting the withdrawal.” Fed.
R. Crim. P. 11(d)(2)(B). We review a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Further, we
closely scrutinize the Rule 11 colloquy and attach a strong
presumption that the plea is final and binding if the Rule 11
hearing is adequate. United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992) (en banc). We conclude from the materials before
us on appeal that Haskins has failed to overcome the presumption
that his guilty plea is final and binding. Therefore, the district
court did not abuse its discretion in denying Haskins’s pro se
motion to withdraw his guilty plea.
Accordingly, we deny Haskins’s motion for an extension of
time to file a pro se reply brief as moot, affirm his conviction,
and dismiss his challenge to his sentence.* 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.
AFFIRMED IN PART AND
DISMISSED IN PART
*
We have considered Haskins’s pro se filing and find the
issues raised therein meritless.
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