UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4569
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIO MCCULLOUGH,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:19-cr-00286-ELH-11)
Submitted: June 29, 2021 Decided: July 1, 2021
Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Steven H. Levin, ROSENBERG MARTIN GREENBERG LLP, Baltimore, Maryland, for
Appellant. LaRai Everett, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrio McCullough pled guilty, pursuant to a written plea agreement, to Counts
1 and 2 of a superseding information charging him with conspiracy to distribute and
possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841. He was sentenced to 84
months’ imprisonment. On appeal, McCullough’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds
for appeal but questioning the validity of McCullough’s guilty plea and whether his
sentence is unreasonable. Although advised of his right to file a supplemental pro se brief,
McCullough has not done so. The Government has moved to dismiss the appeal based on
the appellate waiver in McCullough’s plea agreement. We affirm in part and dismiss in
part.
Counsel first questions whether the district court adequately complied with Rule 11
of the Federal Rules of Criminal Procedure in accepting McCullough’s guilty plea.
McCullough’s waiver of appellate rights does not prevent him from challenging the
validity of the plea itself. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018).
We therefore deny in part the Government’s motion to dismiss and, because McCullough
did not move to withdraw his plea in the district court, we review his challenge to the
adequacy of the plea colloquy for plain error. See United States v. Williams, 811 F.3d 621,
622 (4th Cir. 2016) (stating standard of review).
Before accepting a guilty plea, the district court must conduct a plea colloquy in
which it informs the defendant of, and determines the defendant understands, the rights he
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is relinquishing by pleading guilty, the charge to which he is pleading, and the maximum
and mandatory minimum penalties he faces. 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
plea was voluntary and not the result of threats, force, or promises not contained in the plea
agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual basis for the plea,” Fed.
R. Crim. P. 11(b)(3). Our review of transcript of McCullough’s Rule 11 hearing discloses
that he entered his plea knowingly and voluntarily, and that a factual basis supported the
plea. Accordingly, we find that his guilty plea is valid and therefore affirm McCullough’s
conviction.
Turning to McCullough’s appeal of his sentence, where, as here, the Government
seeks to enforce the appeal waiver and McCullough has not alleged a breach of the plea
agreement, we will enforce the waiver if it is valid and the issue being appealed falls within
the waiver’s scope. United States v. Dillard, 891 F.3d 151, 156 (4th Cir. 2018).
McCullough does not contest that he knowingly and intelligently waived his right to
appeal, see United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010), and our de novo
review of the plea hearing leads us to conclude that the waiver is valid and enforceable, see
United States v. Cohen, 888 F.3d 667, 678 (4th Cir. 2018) (stating standard of review).
Moreover, McCullough’s challenge to his sentence falls within the waiver’s scope.
Accordingly, we grant in part the Government’s motion to dismiss and dismiss the appeal
of the sentence.
This court requires that counsel inform McCullough, in writing, of the right to
petition the Supreme Court of the United States for further review. If McCullough requests
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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 McCullough. 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.
DISMISSED IN PART,
AFFIRMED IN PART
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