United States v. Pittman

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4613

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMMIE RAY PITTMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00043-5)

Submitted: March 4, 2008 Decided: July 18, 2008

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert W. Adams, Hickory, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina;
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jammie Ray Pittman pled guilty pursuant to a plea

agreement to conspiracy to manufacture and possess methamphetamine

with the intent to distribute, in violation of 21 U.S.C. §§ 841 and

846 (2000). On appeal, Pittman argues the district court, having

stricken a two-level enhancement for obstruction of justice

recommended by the probation officer, erred by not further reducing

his sentencing range upon granting the Government’s motion for

downward departure. His brief claims without reference to the

record that “[h]e did not give up his right to appeal from a

Judgment which was entered based on a miscalculation in the

Presentence Report.” Because we find the appellate waiver that is

a provision of Pittman’s plea agreement was knowing and voluntary

and the issue raised by Pittman is within the scope of the waiver,

we dismiss the appeal.

Pittman’s plea agreement contains an appellate waiver

that expressly provides he “waives all such rights to contest the

conviction and/or the sentence except for: (1) claims of

ineffective assistance of counsel, and (2) prosecutorial

misconduct.” His appeal does not raise either of these issues.

When the government seeks to enforce a waiver of

appellate rights and the appellant does not claim the government

breached the plea agreement, this court will enforce the waiver if

the record establishes the defendant knowingly and voluntarily

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agreed to waive the right to appeal, and the issue being appealed

is within the scope of the waiver. See United States v. Blick, 408

F.3d 162, 168-69 (4th Cir. 2005). The record reveals that Pittman

agreed to this waiver knowingly and voluntarily.* See United

States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991)

(explaining that generally, if a district court fully questions a

defendant regarding his waiver of appellate rights during the Fed.

R. Crim. P. 11 colloquy, the waiver is valid).

Accordingly, we dismiss Pittman’s appeal. 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

*
Pittman does not assert on appeal that his appellate waiver
was invalid.

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