United States v. Joshua Durante

                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 21-4326


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JOSHUA JERMAINE DURANTE,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, District Judge. (4:20-cr-00034-D-1)


Submitted: February 24, 2022                                  Decided: February 28, 2022


Before GREGORY, Chief Judge, and NIEMEYER and KING, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam opinion.


ON BRIEF: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North Carolina,
for Appellant. David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown,
Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Joshua Jermaine Durante pled guilty, pursuant to a written plea agreement, to Hobbs

Act robbery, in violation of 18 U.S.C. § 1951; brandishing a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and discharging a firearm

in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The

district court sentenced Durante to 366 months’ imprisonment. On appeal, Durante’s

attorney 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 whether the district court

correctly calculated Durante’s criminal history category and whether the sentence is

substantively reasonable. Durante has filed a pro se supplemental brief asserting that the

district court lacked jurisdiction, that his guilty plea was not valid, and that counsel

provided ineffective assistance. The Government moves to dismiss the appeal pursuant to

the appeal waiver in Durante’s plea agreement. We affirm in part and dismiss in part.

       We review the validity of an appellate waiver de novo and “will enforce the waiver

if it is valid and the issue appealed is within the scope of the waiver.” United States v.

Adams, 814 F.3d 178, 182 (4th Cir. 2016). Upon review of the record, including the plea

agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Durante

knowingly and voluntarily waived his right to appeal his sentence and that the sentencing

issues he raises on appeal fall squarely within the scope of the waiver. Accordingly, we

grant the Government’s motion to dismiss in part and dismiss the appeal as to all issues

within the waiver’s scope.



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       The waiver provision, however, does not preclude our review of the validity of the

guilty plea pursuant to Anders. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir.

2018). We therefore deny in part the Government’s motion to dismiss. Because Durante

did not seek to withdraw his guilty plea, we review the adequacy of the Rule 11 hearing

for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016); see United

States v. Harris, 890 F.3d 480, 491 (4th Cir. 2018) (discussing plain error standard). Our

review of the record leads us to conclude that Durante entered his guilty plea knowingly

and voluntarily, that a factual basis supported the plea, and that his guilty plea is valid. See

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We also readily

conclude that the district court possessed jurisdiction over the offenses with which Durante

was charged. 18 U.S.C. § 3231 (“The district courts of the United States shall have original

jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the

United States.”).

       With respect to Durante’s allegations of ineffective assistance of counsel, we do not

consider ineffective assistance claims on direct appeal “[u]nless an attorney’s

ineffectiveness conclusively appears on the face of the record.” United States v. Faulls,

821 F.3d 502, 507 (4th Cir. 2016). Durante fails to meet this high standard, and his claim

“should be raised, if at all, in a 28 U.S.C. § 2255 motion.” Id. at 508.

       In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal outside the scope of Durante’s valid appellate

waiver. We therefore dismiss the appeal as to all issues within the scope of the waiver and

affirm the remainder of the district court’s judgment. This court requires that counsel

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inform Durante, in writing, of the right to petition the Supreme Court of the United States

for further review. If Durante 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 Durante as appropriate.

       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 in the

decisional process.

                                                                    AFFIRMED IN PART,
                                                                    DISMISSED IN PART




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