United States v. Ricky Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4024

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

RICKY BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00961-TLW-1)

Submitted: July 13, 2011 Decided: July 20, 2011

Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Joshua Snow Kendrick, Columbia, South Carolina, for Appellant.
Arthur Bradley Parham, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Pursuant to a written plea agreement, Ricky Brown pled

guilty to attempted possession with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C.A.

§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2011) and 21 U.S.C.

§ 846 (2006). The parties stipulated in the plea agreement to a

sixty-month term of imprisonment, see Fed. R. Crim. P.

11(c)(1)(C), and the district court sentenced Brown to the

stipulated term. Brown timely noted this appeal.

On appeal, Brown’s counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues, but questioning whether the district

court complied with Federal Rule of Criminal Procedure 11 in

accepting Brown’s guilty plea and the reasonableness of Brown’s

sentence. Brown has filed a pro se supplemental brief. The

Government has elected not to file a response brief. We affirm.

Because Brown did not move to withdraw his guilty plea

in the district court, we review the Rule 11 hearing for plain

error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.

2002). “To establish plain error, [Brown] must show that an

error occurred, that the error was plain, and that the error

affected his substantial rights.” United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007). Based on our review of the

record, we conclude that the district court substantially

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complied with Rule 11 and that Brown’s guilty plea was knowing

and voluntary. We therefore affirm Brown’s conviction.

With regard to Brown’s sentence, we do not have

jurisdiction over this portion of the appeal. Under 18 U.S.C.

§ 3742(c) (2006), a defendant’s appeal of a sentence to which he

stipulated in a Rule 11(c)(1)(C) plea agreement is limited to

circumstances where his “sentence was imposed in violation of

law [or] was imposed as a result of an incorrect application of

the sentencing guidelines.” United States v. Sanchez, 146 F.3d

796, 797 (10th Cir. 1998) (alteration in original) (internal

quotation marks omitted); see United States v. Littlefield, 105

F.3d 527, 527–28 (9th Cir. 1997).

Here, Brown’s sentence was not imposed in violation of

law, as his sixty-month sentence is well-within the maximum

sentence of forty years’ imprisonment. See 21 U.S.C.A.

§ 841(b)(1)(B). Additionally, Brown’s sentence is not the

result of an incorrect application of the Guidelines, because a

sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement

is contractual and not based on the Guidelines. United States

v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005); Littlefield,

105 F.3d at 528. Because § 3742(c) bars review of a sentence

imposed pursuant to a Rule 11(c)(1)(C) plea agreement and none

of the exceptions apply, we dismiss the appeal of Brown’s

sentence.

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In accordance with Anders, we have reviewed the entire

record in this case and Brown’s pro se supplemental brief and

conclude there are no meritorious issues for appeal. We

therefore affirm Brown’s conviction and dismiss the appeal of

his sentence. Further, we deny Brown’s motion to relieve his

appellate attorney. This court requires that counsel inform

Brown, in writing, of the right to petition the Supreme Court of

the United States for further review. If Brown 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 Brown. 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.

AFFIRMED IN PART;
DISMISSED IN PART