United States v. Jackson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4951

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VERNON ANDRE JACKSON,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-9540)

Submitted: August 29, 2007 Decided: September 13, 2007

Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL,
P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, John F. Purcell, Jr., Bonnie S. Greenberg,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This case is before the court on remand from the United

States Supreme Court. We previously affirmed Vernon Andre

Jackson’s conviction. United States v. Jackson, No. 03-4951 (4th

Cir. Jan. 10, 2005) (unpublished). The Supreme Court vacated our

decision and remanded Jackson’s case to us for further

consideration in light of United States v. Booker, 543 U.S. 220

(2005).

In Jackson’s supplemental brief, filed at this court’s

direction after the Supreme Court’s remand, he contends that he is

entitled to resentencing in light of Booker because the district

court considered the guidelines as mandatory and the district court

has subsequently indicated that it would seriously consider a

sentence less than the 108 months imposed if given an opportunity

at a resentencing.

Jackson entered into a plea agreement and waived his

right to appeal whatever sentence imposed, within the statutory

limits and unless an upward departure was imposed. On remand from

the Supreme Court, Jackson argues that the appellate waiver in the

plea agreement should not bar consideration of his sentence because

the district court did not state on the record available on appeal

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that his guilty plea was voluntary.* Jackson does not argue that

his guilty plea was in fact involuntary or unknowing.

Because Jackson did not seek to withdraw his guilty plea

in the district court, any alleged Rule 11 error is reviewed by

this court for plain error. United States v. Martinez, 277 F.3d

517, 524-26 (4th Cir. 2002). To establish plain error, Jackson

must show that an error occurred, that the error was plain, and

that the error affected his substantial rights. United States v.

White, 405 F.3d 208, 215 (4th Cir. 2005).

Jackson asserts in his supplemental brief, although he

did not do so in his initial appeal, that the district court erred

because it did not make a determination that he entered into the

plea agreement knowingly and voluntarily. Jackson contends that a

review of the record indicates that the district court failed to

find that his plea was voluntarily made as required by Fed. R.

Crim. P. 11(b)(2). Under Rule 11(b)(2), “[b]efore accepting a plea

of guilty or nolo contendere, the court must address the defendant

personally in open court and determine that the plea is voluntary

and did not result from force, threats or promises (other than

promises in the plea agreement).”

*
The district court agreed at the Rule 11 hearing to withhold
judgment until sentencing so that the defendant could continue on
release status. The sentencing transcript is lost and was not
available on appeal.

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 During the plea colloquy, the district court thoroughly

questioned Jackson about his intention to plead guilty even though

he was giving up numerous constitutional rights. We therefore

conclude that the district court’s omission on the available record

did not affect Jackson’s substantial rights. See United States v.

Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (discussing factors

courts should consider in determining whether substantial rights

were affected in decision to plead guilty). Our review of the

transcript of the plea hearing also reveals that the district court

otherwise fully complied with the mandates of Rule 11. The court

specifically asked Jackson if he wished to enter into the plea

agreement with the conditional waiver. The district court ensured

that Jackson’s plea was knowing and voluntary and was supported by

a sufficient factual basis. Further, Jackson does not contend that

the district court did not make a finding that he entered into the

plea agreement knowingly and voluntarily at the sentencing hearing.

Jackson is therefore not entitled to relief on the Rule 11 claim

and avoid the waiver.

Furthermore, in United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005), this court held that “[w]here, as here, the United

States seeks enforcement of an appeal waiver, and there is no claim

that the United 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

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waiver is valid and that the issue being appealed is within the

scope of the waiver.” Id. at 168 (citations omitted). The Blick

court held that an appeal waiver that was accepted prior to the

Supreme Court’s decision in Booker is not invalidated by the change

in law effected by that decision. Blick, 408 F.3d at 170, 173.

Therefore the intervening change in law does not operate to

invalidate the waiver.

Accordingly, we dismiss the appeal as to Jackson’s

sentencing claim on remand in light of Booker. In addition, we

reinstate our January 10, 2005, opinion affirming his conviction.

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 IN PART;
AFFIRMED IN PART

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