UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4152
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN ANTOIN DUCKETT, a/k/a Marvin A. Duckett, a/k/a
Marvin Antoine Duckett, a/k/a Marvin Antwon Duckett,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00189-AW-1)
Submitted: November 13, 2012 Decided: November 15, 2012
Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gerald C. Ruter, THE LAW OFFICES OF GERALD C. RUTER, P.C.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Adam K. Ake, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Antoin Duckett appeals from the criminal
judgment imposed after he pleaded guilty to conspiracy to
distribute and possess with the intent to distribute at least
100 grams of PCP or at least one kilogram of a mixture or
substance containing a detectable amount of PCP. He received a
240-month sentence. Duckett challenges the voluntariness of his
guilty plea.
Duckett executed a written plea agreement that
provided in part that he would be able to appeal the sentence
imposed if it was above the high end of the Sentencing
Guidelines range and that the Government could appeal a sentence
below the low end of the Guidelines range. At the Fed. R. Crim.
P. 11 hearing, Duckett’s attorney asserted that Duckett would be
able to appeal from the sentence imposed if he argued for a
downward variance. The district court quickly informed counsel
that he was mistaken. Counsel had a brief off-the-record
discussion of the issue with Duckett. The court then confirmed
on the record that Duckett understood that he could not appeal
from a sentence that did not meet his request for a downward
variance or was below the applicable Guidelines range. Duckett
stated that he agreed.
On appeal, Duckett contends that his plea was
unknowing and involuntary because he did not entirely understand
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the appeal waiver and that he did not have sufficient time to
understand the ramifications of the appeal waiver since, first,
he entered into the agreement the same day that he entered his
plea and, second, the off-the-record discussion was brief. A
defendant may, in a valid plea agreement, waive the right to
appeal under 18 U.S.C. § 3742 (2006). United States v. Wiggins,
905 F.2d 51, 53 (4th Cir. 1990). An appellate waiver must be
“the result of a knowing and intelligent decision to forgo the
right to appeal. United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995) (internal quotation marks and
citation omitted). This court reviews de novo whether a
defendant has effectively waived the right to appeal. United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
To determine whether a waiver is knowing and
intelligent, this court examines the totality of the
circumstances, including the accused’s experience, conduct,
educational background, and familiarity with the plea
agreement’s terms. United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). Generally, if a court fully questions a
defendant regarding the appellate waiver during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However,
this court will refuse to enforce an otherwise valid waiver if
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enforcing the waiver would result in a miscarriage of
justice. Id.
After reviewing the materials on appeal, including the
Rule 11 hearing transcript, we conclude that Duckett’s guilty
plea was knowing and voluntary. The language of the waiver is
clear and unambiguous. The terms of the plea agreement waive
the right to appeal “whatever sentence is imposed (including the
right to appeal any issues that relate to the establishment of
the advisory guidelines range . . .)” except that the Defendant
may appeal any sentence that “exceeds the high end of the
applicable guideline range” and the Government reserved the
right to appeal from a sentence below the low end of the
applicable guideline range. Moreover, after counsel’s
misunderstanding during the Rule 11 colloquy, the court
questioned Duckett specifically regarding the misunderstood
provision of the waiver. Duckett affirmed that he understood
the terms of the appellate waiver. The guilty plea was
therefore knowing and voluntary.
We therefore affirm the conviction and sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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