UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4401
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE SHAWN GREEN, a/k/a Andre Greene, a/k/a Dre,
Defendant - Appellant.
No. 10-4655
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYRONE BLOCKER,
Defendant - Appellant.
No. 10-5085
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID LYNN WADDELL,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:08-cr-00944-MBS-10; 5:08-cr-00944-MBS-22;
5:08-cr-00944-MBS-12)
Submitted: June 30, 2011 Decided: July 13, 2011
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
C. Frederic Marcinak, III, SMITH MOORE LEATHERWOOD, LLP,
Greenville, South Carolina; Louis H. Lang, CALLISON, TIGHE &
ROBINSON, LLC, Columbia, South Carolina; Russell W. Mace, III,
THE MACE FIRM, Myrtle Beach, South Carolina, for Appellants.
William N. Nettles, United States Attorney, Jimmie Ewing,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Andre Shawn Green pleaded guilty to conspiracy to
distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846 (2006); David Lynn
Waddell pleaded guilty to conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846; and Tyrone Blocker pleaded guilty to conspiracy to
distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846, and possession
with intent to distribute and distribution of cocaine within
1000 feet of a school and aiding and abetting, in violation of
18 U.S.C. § 2 (2006), 21 U.S.C. § 841(a) (2006). The district
court sentenced Green to 120 months of imprisonment, Waddell to
sixty months of imprisonment, and Blocker to 168 months of
imprisonment, and they now appeal. The Government has asserted
the waiver of appellate rights contained in each Appellant’s
plea agreement. For the reasons that follow, we dismiss the
appeals.
On appeal, Green argues that his guilty plea was not
knowing and voluntary and that the Fair Sentencing Act should be
retroactively applied to him. Waddell argues that he was
eligible for the safety valve under the Sentencing Guidelines.
Blocker argues that the district court erred in applying an
enhancement under the Guidelines for possession of a firearm.
3
All three Appellants argue that the appeal waivers should not be
enforced.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (citation omitted). To determine
whether a waiver is knowing and intelligent, we examine “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 and citation omitted).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy, the waiver is both valid and enforceable. United
4
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
This court will find that a “waiver is not knowingly
or voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision of the
plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the
full significance of the waiver.” United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992) (citing Wessells, 936 F.2d at
168). In addition, prior to accepting a guilty plea, a trial
court, through colloquy with the defendant, must inform the
defendant of, and determine that he understands, the nature of
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b). The court also must determine whether there is a factual
basis for the plea. Id.; United States v. DeFusco, 949 F.2d
114, 120 (4th Cir. 1991). The purpose of the Rule 11 colloquy
is to ensure that the plea of guilt is entered into knowingly
and voluntarily. See United States v. Vonn, 535 U.S. 55, 58
(2002).
We have thoroughly reviewed the record and conclude
that Green’s guilty plea was entered into knowingly and
voluntarily and that all three Appellants’ plea agreements are
5
valid and enforceable. Moreover, the Appellants knowingly and
intelligently agreed to waive their rights to appeal and the
issues they raise fall within the scope of their respective
appellate waivers.
Accordingly, we dismiss the appeals. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid in the decisional process.
DISMISSED
6