ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4387
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUBERT DOWNER, a/k/a Doc,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00050-WDQ-2)
Submitted: December 26, 2013 Decided: March 19, 2014
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Appellate
Attorney, Greenbelt, Maryland, for Appellant. Peter Marshall
Nothstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hubert Thompson Downer pled guilty, pursuant to a
written plea agreement, to murder in aid of racketeering, in
violation of 18 U.S.C. § 1959(a)(1) (2012). The parties agreed
that a sentence of between 180 and 300 months in prison was the
appropriate disposition of the case, and the district court
sentenced Downer to 240 months’ imprisonment, at the mid-point
of the stipulated range.
Downer appeals. 1 Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), finding no
meritorious grounds for appeal. Counsel concedes that Downer
waived his right to appeal. Downer filed a supplemental brief
challenging the voluntariness of his plea and the reasonableness
of his sentence and raising a claim of ineffective assistance of
counsel. 2 The Government has moved to dismiss Downer’s appeal
based on his waiver of appellate rights. We dismiss in part and
affirm in part.
1
After our initial opinion issued, Downer filed a petition
for panel rehearing and a pro se supplemental brief. We grant
the petition for panel rehearing and consider the claims Downer
raises in his pro se brief.
2
We decline to review Downer’s ineffective assistance of
counsel claim because it does not conclusively appear from the
record that defense counsel provided inadequate representation.
See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997)
(providing standard).
2
In the absence of circumstances not present here, when
a defendant agrees to and receives a particular sentence, he
generally may not appeal his sentence. 18 U.S.C. § 3742(a), (c)
(2012); United States v. Calderon, 428 F.3d 928, 932 (10th Cir.
2005). Here, the district court imposed a sentence within the
specific range to which Downer agreed, and the sentence did not
exceed the statutory maximum. Moreover, it was not imposed as a
result of an incorrect application of the Sentencing Guidelines
because it was based on the parties’ agreement and not on the
district court’s calculation of the Guidelines. United
States v. Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United
States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).
Additionally, Downer waived his right to appeal any issues
regarding his sentence. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). We therefore grant the Government’s motion
to dismiss Downer’s appeal to the extent that he challenges his
sentence.
To the extent Downer asserts that he did not knowingly
and voluntarily enter his plea, we conclude that the record
belies his claim. See United States v. DeFusco, 949 F.2d 114,
116, 119-20 (4th Cir. 1991).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Downer’s conviction, grant the
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Government’s motion to dismiss the appeal of the sentence and
dismiss the appeal of the sentence. Additionally, we deny as
moot the Government’s motion to stay the briefing schedule.
This court requires that counsel inform Downer, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Downer 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 Downer. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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