UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4031
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE BELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00179-RDB-2)
Submitted: December 16, 2009 Decided: January 4, 2010
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Tonya Kelly Kowitz, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Bell appeals his conviction for possession of
a firearm in furtherance of a drug trafficking crime resulting
in death, in violation of 18 U.S.C. § 924(j) (2006). Bell pled
guilty, pursuant to a plea agreement, and was sentenced to 360
months’ imprisonment. On appeal, Bell contends that his denial
at sentencing of any connection to drug trafficking called into
question whether there existed a factual basis for his guilty
plea. Bell contends that this denial invoked a duty of the
district court to satisfy itself that there still existed a
factual basis to enter a guilty plea. The Government has filed
a motion to dismiss, asserting that, as Bell’s guilty plea was
knowingly and voluntarily entered, Bell’s appeal is barred by
the waiver contained in his plea agreement. Although we deny
the Government’s motion, we affirm Bell’s conviction and
sentence.
We review de novo whether a defendant effectively
waived his right to appeal pursuant to a plea agreement. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Where the
government seeks to enforce an appeal waiver and the appellant
does not contend that the government is in breach of its plea
agreement, we will enforce the waiver if the record shows the
waiver is valid and the challenged issue falls within the scope
of the waiver. Id. An appeal waiver is valid if it is “the
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result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citations
omitted). To decide whether a defendant’s waiver results from a
knowing and intelligent decision, we examine “‘the particular
facts and circumstances surrounding that case, including the
background, experience and conduct of the accused.’” United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Generally, if the
district court fully questions a defendant at his Fed. R. Crim.
P. 11 proceeding regarding the waiver of his right to appeal,
the waiver is both valid and enforceable. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Here, there is no question that Bell’s waiver was the
result of a “knowing and intelligent decision to forgo the right
of appeal,” Broughton-Jones, 71 F.3d at 1146, and Bell does not
contend otherwise. Prior to accepting Bell’s guilty plea, the
district court engaged in a lengthy plea colloquy with Bell in
accordance with Fed. R. Crim. P. 11. In particular, the judge
verified that Bell had not been treated for mental illness or
drug addiction, was not currently under the influence of drugs
or alcohol, and was satisfied with his attorneys’ performance.
Additionally, the district court verified that Bell was aware
that he had waived his right to appeal any sentence within the
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range stipulated within the plea agreement. The Government
summarized the factual basis for the guilty plea and Bell
affirmed both that he had committed the crime as summarized by
the Government and still wished to plead guilty. Therefore, as
it is apparent that Bell’s plea was both knowingly and
voluntarily entered, Bell’s waiver will bar the appeal of issues
within its scope.
However, Bell contends that, as his appeal challenges
whether there was a factual basis for his plea agreement, his
appeal is not barred by the waiver contained in his plea
agreement, as “[e]ven valid waivers do not bar a claim that the
factual basis is insufficient to support the plea.”
(Appellant’s Br. at 6); United States v. Hildenbrand, 527 F.3d
466, 474 (5th Cir. 2008); United States v. Mitchell, 104 F.3d
649, 652 n.2 (4th Cir. 1997) (“[I]t is well settled that a
defendant may raise on direct appeal the failure of a district
court to develop on the record a factual basis for the plea.”).
Thus, Bell asserts, because his appeal goes to the propriety of
the guilty plea itself, his appeal is not barred by waiver.
Conversely, the Government argues that the judge
satisfied the requirements of Rule 11 during the plea colloquy,
where he determined that a factual basis existed for the guilty
plea. Therefore, the Government contends, Bell is not
challenging whether a factual basis exists for his plea
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agreement, but instead whether Bell’s “own self-serving denial
that he ever sold drugs, made months after the conclusion of the
Rule 11 colloquy, somehow fairly impugns the validity of the
Rule 11 hearing to allow this direct appeal.” However, the
Government’s argument essentially admits that Bell’s appeal
challenges the validity of Bell’s guilty plea, an attack that
would not be barred by Bell’s appeal waiver. Accordingly, we
deny the Government’s motion to dismiss Bell’s appeal.
However, because Bell has submitted his formal brief
on appeal, and the contentions contained therein are without
merit, we find it appropriate to dispose of his appeal on the
merits. As Bell did not move in the district court to withdraw
his guilty plea, any error in the Rule 11 hearing is reviewed
for plain error. United States v. Martinez, 277 F.3d 517, 524,
527 (4th Cir. 2002). To establish plain error, Bell must “show
that an error occurred, that the error was plain, and that the
error affected his substantial rights.” See United States v.
White, 405 F.3d 208, 215 (4th Cir. 2005). In order to
demonstrate that his substantial rights were affected, Bell must
“show a reasonable probability that, but for the error, he would
not have entered the plea.” United States v. Massenburg, 564
F.3d 337, 344 (4th Cir. 2009).
Though Bell contends that his statements made during
sentencing raised a question as to whether a factual basis
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existed for his plea, the record indicates that, during the plea
colloquy, the Government reiterated the factual basis for the
plea, and Bell affirmed both that the Government’s summary was
accurate and that a factual basis existed for the entry of a
guilty plea. Additionally, Bell signed the attachment to the
plea agreement, stipulating to the facts underlying the guilty
plea. Based on these sworn admissions, the district court
determined that a factual basis existed for the plea agreement.
In the absence of clear and convincing evidence to the
contrary, a defendant is bound by statements made under oath
during his plea colloquy. See Blackledge v. Allison, 431 U.S.
63, 73-74 (1977); United States v. Lemaster, 403 F.3d 216, 221
(4th Cir. 2005) (courts can rely on statements made in open
court at subsequent collateral proceedings). Though Bell
asserts that the district court erred in failing to engage in an
additional colloquy with Bell during his sentencing, any such
error did not affect Bell’s substantial rights. It was
abundantly clear from Bell’s prior sworn attestations that a
factual basis existed for the guilty plea, and Bell fails to
controvert this conclusion. See Massenburg, 564 F.3d at 344
(“[T]he mere existence of an error cannot satisfy the
requirement that [a defendant] show his substantial rights were
affected.”).
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Accordingly, we deny the Government’s motion to
dismiss, deny Bell’s motion to file a pro se supplemental brief,
and affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument will
not aid the decisional process.
AFFIRMED
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