UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5130
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TODD BELL,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cr-00219-RDB-3)
Submitted: July 11, 2011 Decided: July 18, 2011
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Megan E. Green, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. Michael Joseph Leotta, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Todd Bell appeals from his convictions and sentence
for possession and brandishing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(i), (ii) (2006). On appeal, Bell's attorney has
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
plain error when it commingled the elements of the two distinct
offenses in 18 U.S.C. § 924(c)(1)(A) during the plea colloquy.
Bell was informed of his right to file a pro se supplemental
brief but has not done so. The Government has filed a motion to
dismiss the appeal on the basis of the appellate waiver
provision in Bell's plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo, and we will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is valid if the defendant’s agreement to the waiver was knowing
and intelligent. Id. at 169. To determine whether a waiver is
knowing and intelligent, we examine “the totality of the
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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 a district
court fully questions a defendant regarding the waiver of
appellate rights during the Fed. R. Crim. P. 11 colloquy, and
the record indicates that the defendant understood the full
significance of the waiver and was not denied effective
assistance of counsel, the waiver is valid. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
A review of the Rule 11 hearing transcript confirms
that Bell knowingly and intelligently waived his right to appeal
his sentence. Bell explicitly waived his right to appeal a
sentence of 384 months. Bell confirmed at his Rule 11 hearing
that he read the indictment and understood the plea agreement.
The district court conducted the colloquy required under Rule
11, ensuring that Bell understood the waiver and was competent
to enter the plea. We therefore conclude that Bell knowingly
and intelligently waived the right to appeal his sentence.
Accordingly, we grant the motion to dismiss as to any sentencing
issues, precluding our review of Bell's sentence pursuant to
Anders.
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The waiver provision, however, did not waive Bell's
right to appeal his convictions. Defense counsel questions
whether the district court erred when it described the elements
of the offense with which Bell was charged using both "use and
carry" and "possession" terminology. Because Bell did not move
to withdraw his guilty plea in the district court or raise any
objections during the Rule 11 hearing, the plea colloquy is
reviewed for plain error. General, 278 F.3d at 393; United
States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To
demonstrate plain error, a defendant 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). A defendant’s substantial rights are
affected if the Court determines that the error “influenced the
defendant’s decision to plead guilty and impaired his ability to
evaluate with eyes open the direct attendant risks of accepting
criminal responsibility.” United States v. Goins, 51 F.3d 400,
402-03 (4th Cir. 1995) (internal quotation marks omitted); see
also Martinez, 277 F.3d at 532 (holding that a defendant must
demonstrate that he would not have pled guilty but for the
error).
We hold that the court did not commit plain error
during the colloquy. Any error did not affect Bell's
substantial rights, as he does not show that he would not have
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pled guilty but for the district court's description of the
charges. Indeed, Bell made the initial decision to plead guilty
on the basis of the indictment, in which the offense is listed
correctly. At the Rule 11 hearing, Bell assured the court that
he had reviewed the indictment, discussed the charges and his
plea with his attorney, and understood the charges to which he
was pleading guilty. Bell's claim that he failed to receive
adequate notice of the charges is insufficient to overcome his
sworn statements at his Rule 11 hearing. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977). In accordance with Anders, we
have thoroughly examined the entire record for any other
potentially meritorious issues not covered by the waiver and
have found none. Accordingly, we deny the Government's motion
to dismiss as to Bell's convictions, and we affirm those
convictions.
In sum, the Government's motion to dismiss is granted
in part and denied in part, Bell's Anders appeal of his sentence
is dismissed, and his convictions are affirmed. This Court
requires that counsel inform Bell, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Bell 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
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was served on Bell. 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 the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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