UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4719
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAYMOND RAY LOCKLEAR, a/k/a Rambo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:13-cr-00032-FL-1)
Submitted: June 26, 2014 Decided: July 10, 2014
Before GREGORY and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Ray Locklear pleaded guilty to conspiracy to
possess with intent to distribute and distribute more than 280
grams of cocaine base, in violation of 21 U.S.C. § 846 (2012).
The district court sentenced Locklear to 396 months of
imprisonment and he now appeals. For the reasons that follow,
we affirm the conviction and dismiss Locklear’s appeal of his
sentence.
On appeal, Locklear argues that the Government
breached the plea agreement by using allegedly protected
information provided by Locklear to increase the advisory
Guidelines range and that the district court violated his due
process rights based on the use of the information. As Locklear
did not raise this issue in the district court, we review this
claim for plain error. Puckett v. United States, 556 U.S. 129,
133-35 (2009). To establish plain error, Locklear must
demonstrate that a clear or obvious defect occurred that
affected his substantial rights and that we should recognize the
error because it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks, alterations, and citations omitted).
We construe a plea agreement pursuant to the
principles of contract interpretation. United States v. Davis,
689 F.3d 349, 353 (4th Cir. 2012). Because a defendant’s
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fundamental constitutional rights are implicated when he pleads
guilty pursuant to a plea agreement, “the government is held to
a greater degree of responsibility than the defendant . . . for
imprecisions or ambiguities in plea agreements.” United
States v. Lewis, 633 F.3d 262, 269 (4th Cir. 2011). “[W]hile
each party should receive the benefit of its bargain, the
government is bound only by the promises it actually made to
induce the defendant’s plea.” Davis, 689 F.3d at 353 (internal
quotation marks and citation omitted). We have thoroughly
reviewed the record and conclude that Locklear has failed to
demonstrate that the Government breached the plea agreement.
Thus, we affirm his conviction.
Locklear also argues that the sentence is procedurally
and substantively unreasonable. In response, the Government
asserts the waiver of appellate rights contained in the plea
agreement. Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2012). United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Whether a
defendant validly waived his right to appeal is a question of
law that we review de novo. Id. at 168.
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“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (citation omitted). To determine
whether a waiver is knowing and intelligent, we examine “the
totality of the 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 the district court fully questions a defendant
regarding the waiver of his right to appeal during the Fed. R.
Crim. P. 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005);
United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
We conclude that the district court fully complied
with the requirements of Rule 11 and that Locklear’s waiver of
his appellate rights was knowing and intelligent. The appellate
waiver included Locklear’s right to appeal any sentence imposed,
except a sentence above the advisory Guidelines range
established at sentencing. Here, the district court sentenced
Locklear below the advisory Guidelines range. Therefore,
Locklear has waived appellate review of his sentence.
Accordingly, we affirm Locklear’s conviction and
dismiss his appeal of his sentence. We dispense with oral
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argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid in the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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