UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT THOMAS JONES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00290-FL-1)
Submitted: March 15, 2010 Decided: April 13, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Thomas Jones, Jr., appeals his conviction and
ninety-seven month sentence after pleading guilty to one count
of receipt of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2) (2006). On appeal, Jones challenges the validity
of his guilty plea and seeks to appeal his sentence. The
Government asserts that Jones’ guilty plea is valid and that
Jones’ appeal of his sentence is barred by a valid waiver of
appellate rights. Finding no reversible error, we affirm Jones’
conviction. Further, we dismiss the appeal of Jones’ sentence.
Jones first challenges the validity of his guilty
plea, arguing that the district court plainly erred in failing
to conduct a deeper inquiry into whether he understood the
appellate waiver provision of the plea agreement. Prior to
accepting a defendant’s guilty plea, Federal Rule of Criminal
Procedure 11(b)(1) requires the district court to address the
defendant in open court and ensure he understands, among other
things, the charge against him and the consequences of his plea,
including the consequences of any appellate waiver provision in
the plea agreement. Because Jones did not move to withdraw his
guilty plea or raise any objections to the Rule 11 colloquy in
the district court, we review for plain error. United States v.
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Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); United States v.
General, 278 F.3d 389, 393 (4th Cir. 2002).
To demonstrate plain error, Jones must show that:
(1) there was an error; (2) the error was plain; and (3) the
error affected his “substantial rights.” United States v.
Olano, 507 U.S. 725, 732 (1993). To satisfy the third prong in
the context of a guilty plea, Jones must demonstrate that, but
for the district court’s error, he would not have entered into
the plea agreement. Martinez, 277 F.3d at 532. However, even
if Jones is able to demonstrate plain error, we are not required
to correct such an error unless “a miscarriage of justice would
otherwise result,” meaning that “the error seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Olano, 507 U.S. at 736 (alteration in original)
(internal quotation marks omitted).
In conducting the plea colloquy, the district court
questioned Jones’ understanding of the plea agreement. Jones
confirmed that he read the plea agreement and understood every
word of it. The district court then explicitly asked Jones
whether or not he understood that he was “giving up very
valuable rights to appeal,” to which Jones responded: “Yes, your
Honor.” Therefore, we find that the district court committed no
error, much less plain error, in questioning Jones about the
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waiver provision. Because Jones fails to point to any other
deficiencies in the plea colloquy, we find that his guilty plea
was knowing and voluntary and we affirm his conviction.
We review a defendant’s waiver of appellate rights de
novo. 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, we look 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.” General, 278 F.3d at 400
(internal quotation marks omitted). Generally, if the district
court fully questions the defendant about the waiver during the
Rule 11 colloquy, the waiver is valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We will
enforce a valid waiver so long as “the issue being appealed is
within the scope of the waiver.” Blick, 408 F.3d at 168.
At the time Jones entered the plea agreement, he was a
forty-nine-year-old college graduate and had been the head
paralegal at a law firm prior to his arrest. The language of
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the waiver provision was clear and Jones signed the agreement
with the advice of counsel. The district court performed a
thorough Rule 11 colloquy and, when questioned about the plea
agreement, Jones confirmed that he read and understood the
agreement and that he understood he was waiving his appellate
rights. At no point has Jones argued that he did not understand
the plea agreement in general, or the waiver provision in
particular. Therefore, we find that Jones’ waiver of appellate
rights was knowing and intelligent.
Further, the sentencing issue on appeal falls within
the scope of the appellate waiver provision. In the plea
agreement, Jones clearly waived his right “to appeal whatever
sentence is imposed . . . reserving only the right to appeal
from a sentence in excess of the applicable Guidelines range
that is established at sentencing.” Jones was sentenced to
ninety-seven months’ imprisonment, the low end of the applicable
Guidelines range calculated by the district court at sentencing.
Thus, Jones’ challenge to his sentence is barred by the
appellate waiver provision.
Accordingly, we affirm Jones’ conviction and dismiss
the appeal of his sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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