UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARWIN LAQUINCY CUE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:09-cr-00850-RBH-1)
Submitted: August 4, 2011 Decided: August 10, 2011
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. Carrie Ann Fisher, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Darwin Laquincy Cue pled guilty to
possession with intent to distribute a quantity of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). Cue’s
written plea agreement included a Federal Rule of Criminal
Procedure 11(c)(1)(C) stipulated sentence of seventeen years’
imprisonment. The district court granted the Government’s
motion for a downward departure from the stipulated sentence and
sentenced Cue to 125 months’ imprisonment. United States
Sentencing Guidelines Manual § 5K1.1 (2009). Cue then filed
this timely appeal.
Cue’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning the
adequacy of Cue’s Fed. R. of Crim. P. 11 hearing, whether his
waiver of appellate rights was knowing and voluntary, and
whether his sentence is reasonable. Cue received notice of his
right to file a pro se supplemental brief, but did not do so.
Because we find no meritorious grounds for appeal, we affirm his
conviction. Because we lack jurisdiction to review Cue’s
sentence, we dismiss that portion of his appeal.
Cue questions whether the district court adequately
advised him during his Rule 11 hearing. Prior to accepting a
guilty plea, a district court must conduct a plea colloquy in
which it informs the defendant of, and determines that the
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defendant comprehends, the nature of the charge to which he is
pleading guilty, any mandatory minimum penalty, the maximum
possible penalty he faces, and the rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). “In reviewing the
adequacy of compliance with Rule 11, this Court should accord
deference to the trial court’s decision as to how best to
conduct the mandated colloquy with the defendant.” DeFusco, 949
F.2d at 116.
We have thoroughly reviewed the record in this case,
and conclude that the district court complied with the mandates
of Rule 11 in accepting Cue’s guilty plea. Thus, we hold that
the record affirmatively shows there was a factual basis for
Cue’s plea, Cue understood the constitutional rights he waived
in pleading guilty, and Cue’s guilty plea was knowing and
voluntary.
Next, we conclude we lack jurisdiction to review Cue’s
sentence. The federal statute governing appellate review of a
sentence, 18 U.S.C. § 3742(c) (2006), limits the circumstances
under which a defendant may appeal a sentence to which he
stipulated in a Rule 11(c)(1)(C) plea agreement to claims that
“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 &
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n. 1 (10th Cir. 1998); United States v. Littlefield, 105 F.3d
527, 527-28 (9th Cir. 1997). Here, Cue’s sentence was less than
the applicable statutory maximum, and, due to the downward
departure, was less than the sentence he had bargained for with
the Government. Thus, review of his sentence is precluded by
§ 3742(c).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Cue’s conviction and dismiss his appeal of
his sentence. This court requires that counsel inform Cue in
writing of the right to petition the Supreme Court of the United
States for further review. If Cue 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 Cue.
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
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