UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4195
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH TERRELL BRISCOE, a/k/a Dreads,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00065-JPB-DJJ-1)
Submitted: December 15, 2008 Decided: January 20, 2009
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Kirk H. Bottner, Charles Town, West Virginia, for Appellant.
Sharon L. Potter, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Terrell Briscoe pled guilty pursuant to a
written plea agreement to distribution of cocaine base
(“crack”), and he was sentenced to 168 months of imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but raising the following
issues: (1) whether Briscoe was erroneously sentenced as a
career offender because two of his three antecedent felonies
were actually misdemeanors under Maryland law; (2) whether
Briscoe’s sentence as a career offender violated his (a) Fifth
Amendment right against double jeopardy, and (b) his Eighth
Amendment right against cruel and unusual punishment; and (3)
whether the district court erred by failing to grant a reduction
in Briscoe’s sentence, based on Amendment 706 to the Sentencing
Guidelines, which would have reduced his base offense level
under U.S. Sentencing Guidelines Manual § 2D1.1(c) (2007).
Despite notice, Briscoe has not filed a pro se supplemental
brief. For the reasons that follow, we dismiss in part and
affirm in part.
There is a pending motion by the Government to dismiss
the appeal. We grant the motion in part, noting that the record
reveals that Briscoe knowingly and voluntarily waived his right
to appeal his sentence in his plea agreement and that this
2
waiver was specifically reviewed by the magistrate judge at
Briscoe’s plea hearing in compliance with Fed. R. Crim. P. 11.
United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995); United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992). Moreover, we find no exceptions to the waiver rule as
the sentence imposed was not in excess of the statutory maximum,
and there is no challenge to the validity of the guilty plea,
United States v. General, 278 F.3d 389, 399-400 (4th Cir. 2002);
there is no evidence that the sentence was based on a
constitutionally impermissible factor, Marin, 961 F.2d at 496;
and there is no indication that the proceedings were conducted
in violation of the Sixth Amendment right to counsel. United
States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).
Accordingly, we dismiss the appeal of Briscoe’s sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Briscoe’s conviction. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. We dispense with oral
3
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
4