UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4507
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN WILLIAMS, JR., a/k/a Al, a/k/a Little Cutty,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:11-cr-00003-JFM-32)
Submitted: June 10, 2013 Decided: July 17, 2013
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Ayn
Brigoli Ducao, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Williams, Jr., pled guilty to one count of
conspiracy to distribute and possess with intent to distribute,
including within 1000 feet of real property comprising a public
housing facility or a public school, one kilogram or more of
heroin, in violation of 21 U.S.C. § 841 (2006). His counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious issues for appeal but
raising for the court’s consideration the following issues:
(1) whether the plea was knowing and voluntary because the
parties did not agree to the statement of facts; (2) whether
Williams’ Guidelines sentence was defective because he did not
admit to the quantity of heroin and the Government failed to
prove the drug quantity; (3) whether the Guidelines sentence was
improperly based in part on the finding that he was on probation
during part of the conspiracy; (4) whether evidence gained
through wiretaps should have been suppressed; and (5) whether it
was error for Williams to receive the PSR less than thirty-five
days prior to sentencing. Williams has filed a pro se
supplemental brief expounding on the issues raised by counsel
and adding other issues. We affirm the conviction and sentence.
Because Williams did not move to withdraw his guilty
plea in the district court or raise any objections to the Rule
11 colloquy, this court reviews the adequacy of the plea
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colloquy for plain error. United States v. General, 278 F.3d
389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d
517, 524-27 (4th Cir. 2002); see United States v. Olano, 507
U.S. 725, 732 (1993) (detailing plain error standard). While
Williams now attacks the adequacy of his guilty plea, we note
that he was placed under oath and warned of the consequences if
he was not truthful. His declarations in response to the
district court’s questions carry a strong presumption of verity.
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005).
At the Rule 11 hearing, Williams affirmatively agreed that he
was not forced or threatened to plead guilty and that he was
satisfied with counsel’s assistance. He acknowledged the terms
of the oral plea agreement and that no one promised him anything
else in exchange for his guilty plea. He also agreed that he
was responsible for at least one kilogram but less than three
kilograms of heroin. Because Williams pled guilty after the
trial had started, the evidence admitted at trial provided an
independent factual basis for the plea. We conclude that
Williams’ guilty plea was counseled, knowing and voluntary.
Accordingly, we affirm his conviction.
Williams contends that the expert witness who
testified at trial regarding drug terminology and code words
heard on the wiretap conversations should have been excluded and
that the wiretap evidence should have been suppressed. A valid,
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counseled guilty plea waives all antecedent, non-jurisdictional
defects “not logically inconsistent with the valid establishment
of factual guilt and which do not stand in the way of conviction
if factual guilt is validly established.” Menna v. New York,
423 U.S. 61, 62 n.2 (1975); see Tollett v. Henderson, 411 U.S.
258, 267 (1973); United States v. Moussaoui, 591 F.3d 263, 279
(4th Cir. 2010) (“[T]he defendant who has pled guilty has no
non-jurisdictional ground upon which to attack that judgment
except the inadequacy of the plea or the government’s power to
bring any indictment at all.”) (internal quotation marks and
citations omitted). Williams did not enter a conditional guilty
plea; thus, he did not preserve the right to appeal the court’s
adverse rulings regarding the admission of expert testimony or
the admission of the telephone conversations collected through
wiretaps. Accordingly, Williams’ guilty plea forecloses
appellate review of these claims.
We further conclude that there was no error in the
district court’s determination of Williams’ offense level.
Williams pled guilty to being responsible for at least one
kilogram of heroin. Thus, there was no error with a base
offense level of thirty-two. See U.S. Sentencing Guidelines
Manual § 2D1.1(c)(4). We further note that Williams agreed to
be held responsible under the Guidelines for one to three
kilograms of heroin, for a one point addition to the offense
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level because the conspiracy conducted some of its activities
within 1000 feet of a school and that he would receive a two
point reduction for acceptance of responsibility, resulting in a
total offense level of thirty-one.
We further conclude that there was no harmless error
with the district court’s decision to add two points toward
Williams’ criminal history category based on the finding that
Williams was on probation during a portion of the conspiracy.
The Government’s evidence appears to support the court’s
finding. But even if Williams had been successful with his
objection and the two points were deducted, he would still be
placed in Criminal History Category III because he would be left
with four criminal history points.
Williams did not raise at sentencing his claims that
he received the presentence investigation report too late to
adequately review it or that the district court failed to verify
that he and counsel had read and discussed the report. See Fed.
R. Crim. P. 32. Thus, our review is for plain error. See
Olano, 507 U.S. at 732. Williams fails to establish plain error
because he fails to show that he was prejudiced by the alleged
Rule 32 violations.
We have reviewed the reasonableness of Williams’
sentence and conclude there was no error. The within-Guidelines
sentence was both procedurally and substantively sound. See
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Gall v. United States, 552 U.S. 38, 51 (2007). We have reviewed
the remainder of Williams’ arguments and conclude that they lack
merit.
We note that the Government moves to dismiss the
appeal based on the appeal waiver in the oral plea agreement.
This court does not favor oral plea agreements. See United
States v. Iaquinta, 719 F.2d 83, 84 n.2 (4th Cir. 1983). Our
review of the transcript of the Rule 11 hearing shows that the
terms of the appeal waiver were not clear and unambiguous.
Accordingly, we deny the motion to dismiss. * See United
States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (private law
contract principles should be used to determine whether the plea
agreement’s terms were unambiguous).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Williams’ conviction and sentence. We deny
his motion to withdraw the plea agreement. This court requires
that counsel inform Williams, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Williams requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
*
Our finding regarding the appeal waiver in this instance
has no impact upon other portions of the oral plea agreement.
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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Williams. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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