UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4686
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS MARSHALL BYRD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00203-WO-1)
Submitted: August 29, 2014 Decided: September 9, 2014
Before NIEMEYER and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant.
Ripley Rand, United States Attorney, Randall Galyon, Assistant
United States Attorney, Rebecca Fitzpatrick, Special Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Marshall Byrd pled guilty pursuant to a written
plea agreement to conspiracy to distribute cocaine base, 21
U.S.C. § 846 (2012) (object one of Count One), and possession of
a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A)(i) (2012) (Count Five). He was initially
sentenced to 322 months’ imprisonment, which included a five-
year consecutive mandatory sentence on the firearm conviction.
On appeal, this court granted the parties’ joint motion to
remand in light of Dorsey v. United States, 132 S. Ct. 2321,
2328-29 (2012) (holding that a defendant sentenced after the
effective date of the Fair Sentencing Act (“FSA”) for an offense
committed before the FSA’s effective date should be sentenced
pursuant to the FSA).
At resentencing, Byrd challenged the use of two of his
convictions as predicate offenses for the career offender
enhancement; the use of a revised drug quantity stipulation; 1 and
1
In his plea agreement, Byrd stipulated to five kilograms
or more of cocaine base as it pertained to object one of Count
One. At the Fed. R. Crim. P. 11 hearing, the district court
asked Byrd—and Byrd confirmed—that the substance involved in
object one of Count One was in fact five kilograms of cocaine
base. In the PSR, however, the probation officer corrected the
stipulated drug quantity to 280 grams of crack cocaine,
explaining that “the government has indicated that the 5
kilogram amount was a mistake and that 280 grams of cocaine base
is the correct amount.” Thereafter, at sentencing, the district
court ensured that Byrd understood the ramifications of pleading
(Continued)
2
the validity of his guilty plea on Count Five. The court denied
the objections to the PSR, and after construing Byrd’s challenge
to his guilty plea on Count Five as a motion to withdraw his
guilty plea, denied the motion. The court imposed a downward
variance sentence of 180 months on Count One and a sixty-month
consecutive term on Count Five for a total of 240 months’
imprisonment.
On appeal, Byrd asserts that the district court abused
its discretion by denying his motion to withdraw his guilty plea
as to Count Five on the grounds that (1) the court did not
inquire as to whether he understood that he could be deemed a
career offender leading to a more severe Guidelines range; (2)
his plea was not entered knowingly and voluntarily because he
mistakenly stipulated to having distributed five kilograms of
cocaine base; and (3) he reasonably believed the Government had
agreed not to use his conviction when he was seventeen years old
to designate him a career offender and enhance his sentence.
Second, he disputes his career offender designation. Third, he
challenges the substantive reasonableness of his sentence.
Last, he requests he be relieved of the appellate waiver in his
plea agreement because his “unreasonable sentence resulted in a
to the revised amount. Byrd stated he wished to plead guilty to
the lower, more favorable, quantity.
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miscarriage of justice.” We affirm in part, and because we will
enforce the appeal waiver as to Byrd’s sentence, dismiss in
part.
This court reviews a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).
“A defendant has no absolute right to withdraw a guilty plea[.]”
Id. at 383-84 (internal quotation marks omitted). Instead, the
defendant bears the burden of “show[ing] a fair and just reason”
for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);
Nicholson, 676 F.3d at 383.
This court has outlined six factors that the district
court should evaluate to determine whether a defendant is
entitled to withdraw his guilty plea:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
While all the factors noted in Moore should be considered, the
key factor to determining whether a motion to withdraw should be
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granted is whether the Rule 11 hearing was properly conducted.
Nicholson, 676 F.3d at 384.
As noted by the Government on appeal, Byrd rests on
only one Moore factor, i.e., that his plea was not knowing and
voluntary. 2 Byrd claims that, because he was never informed by
the court during his plea hearing that he may qualify as a
career offender and therefore face a lengthier sentence, his
plea was not knowing and voluntary. Although, admittedly, Rule
11 requires a district court to notify a defendant during the
plea colloquy of all potentially applicable statutory minimum
and maximum sentences, it “does not require courts to inform
defendants of the applicable Guidelines sentencing ranges[.]”
United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008).
Next, Byrd argues his plea was not knowing and
voluntary because the plea agreement and plea colloquy referred
to an incorrect stipulated drug quantity as to Count One. Byrd
argues that the stipulation as to drug quantity on Count One
affected the involuntariness of his conviction on Count Five
regarding the firearm. He asserts that such confusion is
2
Although Byrd agreed to waive his right to appeal his
convictions in his plea agreement, a defendant’s waiver of
appellate rights cannot foreclose a colorable constitutional
challenge to the voluntariness of the guilty plea. See, e.g.,
United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir.
1994).
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evidence that his plea was not knowing and voluntary. The
district court discussed at length the ramifications of altering
the stipulated amount and ensured that Byrd understood the
changea change that was of great advantage to Byrdand that the
revised stipulation was knowing and voluntary. We therefore
reject this argument.
Last, Byrd argues his plea was not knowing and
voluntary because he reasonably believed the Government’s
promise not to file an Information of Prior Conviction meant
that the conviction would not be used to designate him a career
offender. In light of Byrd’s statements under oath, which are
entitled to “a strong presumption of verity,” Blackledge v.
Allison, 431 U.S. 63, 74 (1977), Byrd’s misapprehension is
belied by the record. Byrd stated during the Rule 11 hearing
that he understood that his Guidelines range would be calculated
after the preparation of the presentence report. We conclude
the district court did not abuse its discretion in determining
that Byrd failed to establish a “fair and just reason” to
support his request to withdraw his guilty plea.
Byrd’s challenges to his sentence are foreclosed by
his appeal waiver. In his plea agreement, Byrd agreed to waive
his right to appeal “whatever sentence is imposed on any
ground.” We review the validity of an appellate waiver de novo.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
6
denied, 134 S. Ct. 126 (2013). Where the Government seeks to
enforce an appeal waiver, this court will enforce the waiver if
it was knowing and intelligent and the issues raised on appeal
fall within its scope. United States v. Davis, 689 F.3d 349,
354–55 (4th Cir. 2012); see United States v. General, 278 F.3d
389, 400 (4th Cir. 2002) (stating that, in determining whether
appeal waiver is knowing and intelligent, court examines
“totality of the circumstances”). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Rule 11 colloquy and a review of the
record reveals that the defendant understood the full import of
the waiver, the waiver is both valid and enforceable. Copeland,
707 F.3d at 528.
Based on the totality of the circumstances, we
conclude that Byrd knowingly and voluntarily waived his right to
appeal his sentence on the grounds raised on appeal and, at the
Government’s urging, we will enforce the waiver. Thus, we
dismiss the appeal from that part of the judgment imposing
sentence.
Accordingly, we affirm in part and dismiss in part.
We dispense with oral argument because the facts and legal
7
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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