United States v. Jamario Ford

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4482

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAMARIO ARTEZ FORD,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:12-cr-00040-JFA-1)

Submitted: November 20, 2014 Decided: November 24, 2014

Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Howard W. Anderson, III, LAW OFFICE OF HOWARD W. ANDERSON, III,
LLC, Clemson, South Carolina, for Appellant. Stanley D.
Ragsdale, William Kenneth Witherspoon, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jamario Artez Ford pled guilty, pursuant to a plea

agreement, to brandishing a firearm during the commission of a

crime of violence (Count 5), and discharging a firearm during

the commission of a crime of violence (Count 9). The district

court imposed mandatory minimum sentences on both counts for a

total of 384 months of imprisonment (84 months for Count 5 and

300 months consecutively for Count 9). On appeal, Ford’s

attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), alleging there are no meritorious issues in

light of Ford’s late notice of appeal and appellate waiver in

his plea agreement. Ford was notified of his right to file a

pro se supplemental brief, but has not filed a brief. For the

reasons that follow, we affirm.

We first note that Ford’s notice of appeal was

untimely and that the district court did not grant an extension

of time to file or reopen the filing period. In criminal cases,

appeals periods are not jurisdictional, but are court-prescribed

claim-processing rules that do not affect this court’s subject-

matter jurisdiction. See Rice v. Rivera, 617 F.3d 802, 810-11

(4th Cir. 2010) (stating that non-statutory claim-processing

rules are not jurisdictional); United States v. Urutyan, 564

F.3d 679, 685 (4th Cir. 2009) (“[T]he non-statutory time limits

in Appellate Rule 4(b) do not affect subject matter

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jurisdiction.”). The appeal period may still be enforced by

this court when the Rule 4(b) time bar is invoked by the

government; however, in this case, the government has not

invoked the Rule 4(b) time bar or moved to dismiss the appeal as

untimely. Therefore, we conclude that dismissal of the appeal

based on the untimely notice of appeal is not appropriate.

Next, we observe that Ford waived the right to appeal

his conviction and sentence in his plea agreement except for

ineffective assistance and prosecutorial misconduct. A

defendant may waive the right to appeal if the waiver is knowing

and intelligent. United States v. Poindexter, 492 F.3d 263, 270

(4th Cir. 2007). However, the government has not chosen to

enforce the waiver, and it is our policy not to raise this issue

sua sponte. Therefore, we need not consider whether the waiver

is dispositive of this appeal. See id. at 271 (stating that, if

an Anders brief is filed in a case with an appellate waiver, the

government’s failure to respond “allow[s] this court to perform

the required Anders review”). Accordingly, we conclude that our

review is not limited by the appeal waiver.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Our review of Ford’s plea hearing reveals he knowingly

and voluntarily pled guilty to his offenses and that the

proceeding was conducted in compliance with Fed. R. Crim. P. 11.

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Accordingly, we find no reversible error. See United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (noting that when a

defendant does not seek to withdraw his guilty plea or otherwise

preserve any allegation of Rule 11 error, this court reviews his

plea colloquy for plain error). Review of Ford’s sentencing

hearing also reveals no reversible error. As noted by the

district court, it imposed the mandatory minimum sentences for

both offenses. See 18 U.S.C. §§ 924(c)(1)(A)(ii) (seven year

mandatory sentence for brandishing), (c)(1)(C) (twenty-five year

mandatory sentence for subsequent § 924(c) conviction) (2012).

Thus we find that Ford’s sentence was reasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007) (discussing appellate

reasonableness review of sentences for an abuse-of-discretion

standard).

We therefore affirm the district court’s judgment and

deny counsel’s motion to withdraw. This court requires that

counsel inform his client, in writing, of his right to petition

the Supreme Court of the United States for further review. If

the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel

may renew his motion in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on the client. Finally, we dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would

not aid the decisional process.

AFFIRMED