UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4793
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSMAN WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00141-MOC-1; 3:12-cr-00013-MOC-1)
Submitted: July 17, 2014 Decided: July 31, 2014
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Anthony G. Scheer, RAWLS, SCHEER, FOSTER, MINGO & CULP, PLLC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Osman White appeals the 140-month sentence imposed by
the district court following his guilty plea to distribution and
possession with intent to distribute cocaine and marijuana, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and Hobbs
Act robbery, in violation of 18 U.S.C. § 1951 (2012). On
appeal, White asserts that the district court committed
procedural error in its application of a U.S. Sentencing
Guidelines Manual (“USSG”) § 5K1.1 (2012) downward departure and
that the Government breached the plea agreement by seeking a
vulnerable victim sentencing enhancement. ∗ The Government moves
to dismiss White’s downward departure claim pursuant to the
waiver of appellate rights contained in his plea agreement and
urges this court to affirm White’s conviction and sentence with
regard to all other issues. Because whether the Government
breached the plea agreement is intrinsic to the analysis of
whether the waiver of appellate rights is valid, we consider
both of White’s appellate issues together.
Where the government seeks to enforce an appeal
waiver, we will enforce the waiver if the defendant’s waiver was
∗
White’s counsel states that he is submitting the second
issue pursuant to Anders v. California, 386 U.S. 738 (1967).
However, because he seeks review on the merits of the first
issue, we have not construed the brief as filed pursuant to
Anders.
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knowing and intelligent and the issues raised on appeal fall
within the scope of the agreement. United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). We review de novo the
validity of an appellate waiver. United States v. Manigan, 592
F.3d 621, 626 (4th Cir. 2010). “Generally, if a district court
questions a defendant regarding the waiver of appellate rights
during the [Fed. R. Crim. P.] 11 colloquy and the record
indicates that the defendant understood the full significance of
the waiver, the waiver is valid.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir. 2012).
We have reviewed the Fed. R. Crim. P. 11 plea colloquy
and conclude that White knowingly and voluntarily waived his
right to appeal whatever sentence the district court imposed.
Further, White’s claim that the district court improperly
applied a downward departure pursuant to USSG § 5K1.1, a
question of procedural reasonableness, is within the scope of
his waiver. Lastly, we conclude that the Government did not
breach the plea agreement by seeking a vulnerable victim
sentencing enhancement because the plea agreement forbade the
Government only from seeking an upward departure or variance,
and it permitted the Government to seek additional enhancements
other than those enumerated in the agreement. Therefore, we
conclude that White’s appeal of this issue is barred by the
waiver of his appellate rights.
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Accordingly, we grant the Government’s motion to
dismiss as to White’s downward departure claim and affirm the
district court’s judgment. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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