United States v. Darwin Cue

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5050

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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