United States v. Stephen Jones

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4106

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

STEPHEN LAROY JONES,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cr-00079-AW-1)

Submitted: August 23, 2012 Decided: September 5, 2012

Before WILKINSON, KING, and THACKER, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Jerome M. Maiatico, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; William Moomau, OFFICE
OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Stephen Laroy Jones pled guilty, pursuant to a written

plea agreement, to possession of a firearm as a convicted felon,

in violation of 18 U.S.C. § 922(g)(1) (2006), and possession

with intent to distribute controlled substances, in violation of

21 U.S.C. § 841(a)(1) (2006). The district court sentenced

Jones to 120 months’ imprisonment for the firearm offense and

130 months’ imprisonment for the controlled substance offense,

to run concurrently. Jones appeals.

On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal but questioning whether the

court committed procedural sentencing error. Jones was notified

of his right to file a pro se supplemental brief but declined to

do so. The Government moves to dismiss the appeal in part,

based on the appellate waiver provision in Jones’s plea

agreement. We dismiss in part and affirm in part.

We review the validity of an appeal waiver de novo.

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).

Where the Government seeks to enforce an appeal waiver and did

not breach its obligations under the plea agreement, we will

enforce the waiver if the record establishes that (1) the

defendant knowingly and intelligently agreed to waive his right

to appeal, and (2) the issues raised on appeal fall within the

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scope of the waiver. United States v. Blick, 408 F.3d 162,

168-69 (4th Cir. 2005).

Our review of the record indicates that Jones’s waiver

was valid and enforceable as to issues within its scope. The

court specifically questioned Jones regarding the terms of his

written appeal waiver to ensure that he understood the rights he

was waiving. Jones testified that he reviewed the agreement in

full with counsel and understood its terms, and his college

education and firm understanding of the English language further

support this conclusion. See Manigan, 592 F.3d at 628; Blick,

408 F.3d at 169. While the parties appear to have clarified the

terms of their agreement orally on the record, Jones testified

that he fully understood the waiver provision as clarified by

the parties, and this clarification inured to Jones’s benefit.

We therefore conclude that Jones knowingly and intelligently

waived his appellate rights.

As clarified during the plea colloquy, Jones’s

appellate waiver provided that he waived his right to appeal his

convictions and sentence if he received a sentence below 150

months’ imprisonment. * Jones in fact received such a sentence

*
Assuming, without deciding, that this oral clarification
did not constitute a binding modification of the agreement, see
United States v. Martin, 25 F.3d 211, 217 n.4 (4th Cir. 1994)
(“[I]ntegrated written plea agreements are not open to oral
supplementation.” (internal quotation marks omitted)); but see
(Continued)
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and therefore waived his right to appeal both his convictions

and sentence. However, the Government has not sought to enforce

the appeal waiver to preclude challenges to the voluntariness of

Jones’s guilty plea. Because we will not sua sponte enforce an

appellate waiver, see Blick, 408 F.3d at 168 (citing United

States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)), we

conclude that Jones’s appellate waiver does not foreclose a

challenge to the voluntariness of his plea.

In accordance with Anders, we have reviewed the record

in this case and have found no non-waivable meritorious issues

for appeal. We therefore grant the Government’s motion to

dismiss in part and dismiss the appeal of Jones’s convictions

and sentence, except as to the voluntariness of his guilty plea

and non-waivable sentencing and conviction issues. We also deny

the motion to dismiss in part and affirm the district court’s

judgment as to the voluntariness of Jones’s guilty plea and all

United States v. Wood, 378 F.3d 342, 348-50 (4th Cir. 2004)
(finding effective modification of plea agreement through
repeated mischaracterization of agreement’s terms by court and
“the Government’s affirmative acquiescence in the court’s
explanation”), Jones’s written appeal waiver precluded Jones
from appealing his convictions or any sentence above the
applicable Guidelines range (here, 120 to 150 months). On the
facts presented, we conclude that Jones knowingly and
intelligently waived his appellate rights under either waiver
provision. We further conclude that, given Jones’s sentence,
the waiver provisions are identical in scope and operate to
preclude the same issues on appeal.

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non-waivable issues. This court requires that counsel inform

Jones, in writing, of the right to petition the Supreme Court of

the United States for further review. If Jones 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 Jones.

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.

DISMISSED IN PART;
AFFIRMED IN PART