UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4199
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN BROWN, a/k/a KB,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00842-RBH-4)
Submitted: August 27, 2015 Decided: September 9, 2015
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Amy K. Raffaldt, Myrtle Beach, South Carolina, for Appellant.
Arthur Bradley Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Brown pleaded guilty, pursuant to a written plea
agreement, to conspiring to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846
(2012). Brown and the Government negotiated a Fed. R. Crim. P.
11(c)(1)(C) agreement, stipulating that a 108-month sentence
would be appropriate. The district court accepted the plea and
imposed the stipulated sentence. In accordance with Anders v.
California, 386 U.S. 738 (1967), Brown’s counsel has filed a
brief certifying that there are no meritorious issues for
appeal, but questioning the validity of Brown’s guilty plea,
appellate waiver, and sentence. Although notified of his right
to do so, Brown has not filed a supplemental brief. We affirm
the district court’s judgment in part and dismiss the appeal in
part.
We first review Brown’s guilty plea. Prior to accepting a
guilty plea, a district court must conduct a plea colloquy in
which it informs the defendant of, and determines that he
understands, the nature of the charge to which he is pleading
guilty, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court
also must ensure that the defendant’s plea is voluntary,
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supported by a sufficient factual basis, and did not result from
force, threats, or promises not contained in the plea agreement.
Fed. R. Crim. P. 11(b)(2), (3); DeFusco, 949 F.2d at 119-20.
Because Brown did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, we review the plea colloquy for plain error, United
States v. General, 278 F.3d 389, 393 (4th Cir. 2002), and
conclude that the district court fully complied with Rule 11 in
accepting Brown’s guilty plea during a thorough hearing.
We next consider Brown’s appellate waiver. A defendant may
waive his appellate rights, and this court “will enforce the
waiver if it is valid and the issue appealed is within the scope
of the waiver.” United States v. Davis, 689 F.3d 349, 355 (4th
Cir. 2012). “Generally, if a district court questions a
defendant regarding the waiver of appellate rights during the
Rule 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 review de novo the validity of an appellate waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).
Here, the record establishes that Brown knowingly and
intelligently waived his right to appeal. During the thorough
plea colloquy, Brown confirmed that he reviewed the plea
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agreement, which clearly stated that he waived his right to
appeal. Moreover, Brown specifically affirmed that he waived
his right to appeal. Consequently, Brown’s appellate waiver
stands.
Finally, while Brown’s counsel questions the district’s
court sentence, federal law limits the circumstances under which
a defendant may appeal a sentence to which he stipulated in a
Rule 11(c)(1)(C) plea agreement. See 18 U.S.C. § 3742(a), (c)
(2012). Specifically, § 3742 limits appeal to claims that a
defendant’s sentence “was (1) imposed in violation of the law,
(2) imposed as a result of an incorrect application of the
Guidelines, or (3) is greater than the sentence set forth in the
plea agreement.” United States v. Calderon, 428 F.3d 928, 932
(10th Cir. 2005).
Counsel raises no such claims on appeal; rather, she
questions whether the district court wrongly adjudged Brown a
career offender and whether the district court imposed an
unreasonable sentence. Brown’s sentence was based on the
parties’ agreement — not on the district court’s career offender
designation or calculation of the Guidelines range. See 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). Thus,
to the extent he challenges the appropriateness of the district
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court’s 108-month term of imprisonment, we dismiss Brown’s
appeal.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Brown’s conviction but dismiss Brown’s appeal
as to his sentence of imprisonment. This court requires that
counsel inform Brown, in writing, of the right to petition the
Supreme Court of the United States for further review. If Brown
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 Brown.
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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