UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4919
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD MCCULLOUGH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00223-F-1)
Submitted: June 28, 2012 Decided: August 17, 2012
Before KING, SHEDD, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Edward McCullough pled guilty, in two separate
proceedings, to two counts of possessing with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1)
(2006). McCullough was sentenced to consecutive sentences of
fifteen months and 120 months, for a total of 135 months.
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
non-frivolous issues for appeal, but questioning the sufficiency
of the evidence supporting the quantity of drugs attributed to
McCullough for sentencing purposes and whether this judicial
fact finding violated McCullough’s Sixth Amendment rights.
McCullough has filed a pro se supplemental brief in which he
questions whether his prior convictions properly supported the
application of enhanced statutory sentences on one of the
counts. The Government has moved to dismiss McCullough’s appeal
of his sentence based on the terms of the waiver of appellate
rights contained in McCullough’s plea agreement. For the
following reasons, we grant the Government’s motion in part,
dismiss in part, and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of a given issue if the issue is
2
within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). The validity of an appellate
waiver is a question of law that we review de novo, and “depends
on whether the defendant knowingly and intelligently agreed to
waive the right to appeal.” Id. at 169. This determination,
often made based on the sufficiency of the plea colloquy and
whether the district court questioned the defendant about the
appeal waiver, ultimately turns on an evaluation of the totality
of the circumstances. Id.
Here, the district court substantially complied with
Fed. R. Crim. P. 11 when accepting McCullough’s second plea,
ensuring that McCullough understood the rights he was
relinquishing by pleading guilty and the sentence he faced, that
McCullough committed the offense to which he was pleading, and
that McCullough was aware of the limits his plea would place on
his appellate rights. Given no indication to the contrary, we
find that McCullough’s appellate waiver is valid and
enforceable.
However, as counsel made clear during McCullough’s
second Rule 11 hearing, McCullough pled “straight up” to Count
Two of the original indictment in order to avoid the application
of an enhanced sentence to that conviction, 18 U.S.C. § 851
(2006). Further, the parties and the district court did not
consider McCullough’s plea to Count Two to be governed by
3
McCullough’s second plea agreement. Therefore, we find that the
appeal waiver only precludes McCullough’s appeal of his within-
Guidelines sentence on Count Four of the superseding indictment,
see United States v. Jordan, 509 F.3d 191, 195-96 (4th Cir.
2007), and we grant the Government’s motion as to that sentence
only. Notwithstanding this result, the substantive challenges
McCullough raises to his sentence on Count Two provide no
meritorious ground for appeal.
First, counsel questions whether the evidence at
sentencing was sufficiently reliable to support the district
court’s findings regarding the quantity of drugs attributable to
McCullough for sentencing purposes. Generally, a district court
must find facts relevant to sentencing by a preponderance of the
evidence, and we review such findings for clear error. See
United States v. Alvarado Perez, 609 F.3d 609, 612, 614 (4th
Cir. 2010). Further, although the evidence relied on must
possess sufficient indicia of reliability, we afford great
deference to the credibility determinations of district courts
during sentencing, United States v. McKenzie-Gude, 671 F.3d 452,
463 (4th Cir. 2011). We find no clear error in the district
court’s findings here.
Nor did the district court violate McCullough’s Sixth
Amendment rights when it imposed sentence based on facts neither
admitted by McCullough nor found by a jury. We have
4
consistently rejected such a claim and are without authority to
overrule a prior panel of this court. United States v. Rivers,
595 F.3d 558, 564 n.3 (4th Cir. 2010); United States v. Grubbs,
585 F.3d 793, 799 (4th Cir. 2009).
Moreover, because the district court substantially
complied with Rule 11 when accepting both of McCullough’s guilty
pleas, we conclude that they were knowing and voluntary, and,
consequently, final and binding. See United States v. Lambey,
974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). McCullough’s pro
se challenge to the validity of his plea based on our decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), which issued after his second Rule 11 hearing, fails to
convince us otherwise.
In accordance with Anders, we have reviewed the
record, mindful of the scope of the appellate waiver, and have
found no meritorious issues for appeal. We therefore dismiss
the appeal in part and affirm in part. This court requires that
counsel inform McCullough, in writing, of his right to petition
the Supreme Court of the United States for further review. If
McCullough requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
McCullough. We dispense with oral argument because the facts
5
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
6