UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES S. JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00008-HEH-1)
Submitted: July 31, 2013 Decided: August 21, 2013
Before DUNCAN, AGEE, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mark Bodner, Fairfax, Virginia, for Appellant. Olivia L.
Norman, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2007, Charles Sherrod Jones pled guilty, pursuant
to a written plea agreement, to conspiracy to distribute and
possess with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. § 846 (2006), and the district
court sentenced him as a career offender to 275 months’
imprisonment. In 2010, the district court reduced Jones’
sentence to 193 months’ imprisonment pursuant to Fed. R. Crim.
P. 35(b)(2). Jones subsequently filed a motion to vacate his
sentence pursuant to 28 U.S.C.A. § 2255 (West Supp. 2013),
arguing that he was improperly sentenced as a career offender.
In 2012, the district court granted Jones’ § 2255 motion,
finding that Jones did not possess the requisite two prior
felony convictions in order to qualify as a career offender
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1
(2012). After appointing counsel to represent Jones and hearing
arguments from both parties, the district court re-sentenced
Jones to 98 months’ imprisonment.
Jones now appeals. His counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious grounds for appeal but questioning
whether the district court committed procedural error in
calculating Jones’ Guidelines range because it included Jones’
2002 uncounseled, consolidated state court convictions in his
2
criminal history score. Jones has filed a supplemental pro se
brief arguing that his waiver of the right to counsel in his
2002 consolidated state court convictions violated the Sixth
Amendment because his waiver was not knowing and intelligent.
Jones further argues that the district court plainly erred when
it used the 2002 convictions to calculate his criminal history
score. The Government has filed a motion to dismiss Jones’
appeal of his sentence based on the appellate waiver provision
in the plea agreement. We grant the motion to dismiss.
We review de novo a defendant’s waiver of appellate
rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted). To determine whether the waiver is knowing and
intelligent, this court looks “to the totality of the
circumstances, including the experience and conduct of the
accused, as well as the accused’s educational background and
familiarity with the terms of the plea agreement.” United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks omitted).
Our review of the record leads us to conclude that
Jones knowingly and voluntarily waived the right to appeal his
3
sentence. The issue raised by Jones and his counsel,
questioning whether the district court committed procedural
error in calculating Jones’ Guidelines range, is within the
scope of the waiver.
Jones contends that enforcement of his appellate
waiver would constitute a miscarriage of justice. We disagree.
“[W]e have refused to enforce valid appeal waivers for a narrow
class of claims, . . . based on our determination that those
claims were not within the scope of the waiver.” Blick, 408
F.3d at 171 (internal quotation marks omitted). For example, we
refuse to enforce a valid appellate waiver when an appellant
challenges “a sentence imposed in excess of the maximum penalty
provided by statute or based on a constitutionally impermissible
factor such as race,” United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992), or when an appellant challenges a “sentence on
the ground that the proceedings following entry of the guilty
plea were conducted in violation of his Sixth Amendment right to
counsel.” United States v. Attar, 38 F.3d 727, 732 (4th Cir.
1994); see United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005) (summarizing holdings in Marin and Attar). We “‘refuse to
enforce an otherwise valid waiver if to do so would result in a
miscarriage of justice.’” Johnson, 410 F.3d at 151 (quoting
United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003)).
4
Here, Jones’ argument that his 2002 uncounseled,
consolidated state court convictions violated his Sixth
Amendment right to counsel asserts a violation by the state
court, but does not amount to a constitutional violation by the
district court. Because Jones’ challenge regards the district
court’s calculation of his Guidelines range, there is no
miscarriage of justice sufficient to overcome the appellate
waiver. See Andis, 333 F.3d at 892 (describing “miscarriage of
justice” exception as “extremely narrow,” and noting that “an
allegation that the sentencing judge misapplied the Sentencing
Guidelines . . . is not subject to appeal in the face of a valid
appeal waiver”). Consequently, appellate review of the district
court’s calculation of Jones’ Guidelines range is foreclosed.
Pursuant to Anders, we have reviewed the entire record
and have found no unwaived issues that are meritorious and
outside the scope of the waiver. We therefore grant the
Government’s motion to dismiss the appeal of Jones’ sentence.
This court requires that counsel inform Jones, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Jones requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Jones.
5
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.
DISMISSED
6