UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANTE L. WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:06-cr-00045-HEH)
Submitted: September 7, 2007 Decided: September 19, 2007
Before KING and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Taylor B. Stone, BREMNER, JANUS, COOK & STONE, Richmond, Virginia,
for Appellant. Charles Philip Rosenberg, United States Attorney,
Alexandria, Virginia; Peter Sinclair Duffey, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dante L. Williams appeals from his conviction and 360-
month sentence for possession with intent to distribute five grams
or more of cocaine base, in violation of 21 U.S.C.
§ 841(b)(1)(B)(iii) (2000). Counsel for Williams filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which he
asserts that there are no meritorious issues for appeal, but asks
this court to review whether the trial court erred in denying
Williams’ request for a reduction in his offense level for
acceptance of responsibility, his motion for a downward departure,
and his motion to withdraw his guilty plea. In response, the
Government filed a motion to dismiss, asserting that in light of
the appellate waiver in Williams’ plea agreement, there was no
basis to challenge his conviction or his sentence. Counsel for
Williams stated that he had no response to the motion to dismiss;
however, Williams filed a pro se brief in which he contended that
the indictment was flawed because it did not include the signature
of the grand jury foreman or any notice regarding an enhanced
sentence pursuant to 21 U.S.C. § 851 (2000). Williams also claimed
that his prosecution under 21 U.S.C. § 841 (2000) violated the
separation of powers doctrine.
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether a defendant has
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waived his right to appeal is an issue of law subject to de novo
review. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
A waiver will preclude appeal of a specific issue if the record
establishes that the waiver is valid and that the issue is within
the scope of that waiver. United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994); cf. United States v. Blick, 408 F.3d 162,
171 (4th Cir. 2005) (refusing to enforce waiver for a “narrow class
of claims” that are not within the scope of the waiver).
In his Anders brief, Williams challenges the district
court’s determinations that he did not qualify for an offense level
reduction or a downward departure. These claims are squarely
within the scope of the appellate waiver, as Williams waived the
right to appeal any sentence below the statutory maximum or the
manner in which the sentence was determined. See Attar, 38 F.3d at
731-33.
Williams next asserts that the district court erred in denying
his motion to withdraw his guilty plea. This claim falls outside
of the scope of the appellate waiver, as Williams’ motion alleged
that counsel’s ineffective assistance led him into accepting the
plea agreement. See Attar, 38 F.3d at 733 n.2; United States v.
Craig, 985 F.2d 175, 178 (4th Cir. 1993). Thus, this claim must be
addressed on the merits. After a plea has been entered, a
defendant may withdraw the plea only if he can show a “fair and
just reason” for requesting the withdrawal. Fed. R. Crim. P.
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11(d)(2)(B). This court reviews the district court’s refusal to
allow a defendant to withdraw a guilty plea for abuse of
discretion. United States v. Bowman, 348 F.3d 408, 413-14 (4th
Cir. 2003). When considering whether to permit a defendant to
withdraw a guilty plea, a district court must evaluate the factors
enumerated in United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). The most important consideration is whether the Rule 11
colloquy was properly conducted and the plea was both counseled and
voluntary. See United States v. Bowman, 348 F.3d 408, 413-14 (4th
Cir. 2003).
In his withdrawal motion and at the subsequent hearing,
Williams alleged that he accepted the plea agreement only because
counsel told him that the Government would withdraw its notice
seeking an enhanced sentence pursuant to 21 U.S.C. § 851 if he
entered a guilty plea. While claiming that he was not guilty of
the crimes charged, Williams did not assert any substantive error
with respect to the Rule 11 hearing. At the plea hearing, Williams
stated he was satisfied with counsel’s performance, that there were
no promises or expectations that had not been included in the plea
agreement, and that he was guilty of the charged offense. The
record establishes that Williams knowingly and voluntarily entered
into his guilty plea with a full understanding of the consequences,
and that there was no error in the district court’s acceptance of
his plea.
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Williams also failed to credibly assert his legal
innocence at the hearing on his motion to withdraw his guilty plea.
In an attempt to repudiate his admissions made at the Rule 11
hearing, Williams stated only that he “went along with what my
lawyer told me to do.” The district court held that despite
Williams’ denial of ownership of the narcotics, he had previously
admitted he knew they were present in his car and that he was
guilty of the charged offense. See Blackledge v. Allison, 431 U.S.
63, 74 (1977). None of the remaining factors weigh in Williams’
favor, as he had competent assistance of counsel through the
proceedings, and he filed the motion to withdraw his guilty plea
nearly three months after the Rule 11 hearing. Therefore, we find
that the district court did not abuse its discretion in denying
Williams’ motion to withdraw his guilty plea.
As for his pro se claims, Williams first contends that
his indictment was not signed by the grand jury foreperson and that
the court therefore lacked subject matter jurisdiction in this
case. Because subject matter jurisdiction involves the power of a
court to hear a case, claims that a court lacked jurisdiction are
not barred by an appellate waiver. See United States v. Cotton,
535 U.S. 625, 630 (2002). However, contrary to Williams’
contention, failure by the foreperson to sign the indictment is a
non-jurisdictional error that is foreclosed by Williams’ guilty
plea. See Frisbie v. United States, 157 U.S. 160, 163-65 (1895);
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United States v. Easton, 937 F.2d 160, 161-62 (5th Cir. 1991);
United States v. Adu, 82 F.3d 119, 123 (6th Cir. 1996); see also
Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). Accordingly,
this claim is meritless.
Williams’ next claim is that his indictment failed to
make any reference to 21 U.S.C. § 851 or the increased penalty
provisions that resulted from his prior felony convictions.
However, failure by the Government to comply with the requirements
under § 851 is a non-jurisdictional error; therefore, this claim is
barred by the appellate waiver. See United States v. Beasley, __
F.3d __, 2007 WL 2121722 (4th Cir. July 25, 2007) (No. 04-4107).
Finally, Williams contends that his prosecution and
conviction under 21 U.S.C. § 841(b)(1)(B)(iii) violated the
separation of powers doctrine, as he claims that the federal
government lacks “exclusive jurisdiction” in this area and that he
could not be charged by the federal government after his state
charges had been nolle prosequied. Assuming that Williams’
separation of powers claim is a challenge to the jurisdiction of
the federal courts, and therefore would not be barred by the
appellate waiver, this claim is meritless. See Rinaldi v. United
States, 434 U.S. 22, 28 (1977).
Accordingly, we grant the Government’s motion to dismiss
as to the claims foreclosed by the plea waiver, deny the motion as
to Williams’ claims that the district court erred in denying his
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motion to withdraw his guilty plea, that the district court lacked
jurisdiction due to a defect in the indictment, and that his
conviction violated the separation of powers doctrine, and we
affirm as to those claims. 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 in the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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