UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER FORD, a/k/a Tink, a/k/a Tavon, a/k/a T,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:10-cr-00336-BEL-5)
Submitted: December 20, 2012 Decided: December 26, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Neal Gary Rosensweig, NEAL GARY ROSENSWEIG, P.A., Hollywood,
Florida, for Appellant. Christopher John Romano, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Roger Ford
pleaded guilty to conspiracy to distribute and to possess with
intent to distribute controlled substances, in violation of 21
U.S.C. §§ 846, 860 (2006). The plea agreement contained two
relevant stipulations: (1) that the conspiracy involved at
least 5 kilograms of cocaine and 280 grams of crack cocaine; and
(2) that a 180-month term of imprisonment was appropriate. See
Fed. R. Crim. P. 11(c)(1)(C). The district court subsequently
sentenced Ford to the stipulated term. Ford timely noted this
appeal.
On appeal, Ford’s 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 district court complied with the mandates of Rule 11 in
accepting Ford’s guilty plea and the reasonableness of Ford’s
sentence. Although advised of his right to do so, Ford has not
filed a pro se supplemental brief. The Government has moved to
dismiss the appeal of Ford’s sentence for lack of jurisdiction.
For the reasons that follow, we affirm Ford’s conviction, but we
grant the Government’s motion and dismiss the appeal of Ford’s
sentence.
We first address Ford’s conviction. Because Ford did
not move to withdraw his guilty plea in the district court, we
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review the Rule 11 hearing for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). “To establish
plain error, [Ford] must show that an error occurred, that the
error was plain, and that the error affected his substantial
rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.
2007). Based on our review of the record, we conclude that the
district court substantially complied with Rule 11 and committed
no error warranting correction on plain error review.
Turning, then, to the motion to dismiss, we agree with
the Government that we do not have jurisdiction over this
portion of the appeal. Under 18 U.S.C. § 3742(c) (2006), a
defendant’s appeal of a sentence to which he stipulated in a
Rule 11(c)(1)(C) plea agreement is limited to circumstances
where his “sentence was imposed in violation of law or was
imposed as a result of an incorrect application of the
sentencing guidelines.” United States v. Sanchez, 146 F.3d 796,
797 (10th Cir. 1998) (alteration and internal quotation marks
omitted); see United States v. Littlefield, 105 F.3d 527, 527–28
(9th Cir. 1997).
Here, Ford’s sentence was not imposed in violation of
law, as his 180-month sentence is within the maximum sentence of
life imprisonment. See 21 U.S.C. § 846; 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999 & Supp. 2012). Additionally, Ford’s
sentence is not the result of an incorrect application of the
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Guidelines, because a sentence imposed pursuant to a Rule
11(c)(1)(C) plea agreement is contractual and not based upon the
Guidelines. United States v. Cieslowski, 410 F.3d 353, 364 (7th
Cir. 2005). Because § 3742(c) bars review of a sentence imposed
pursuant to a Rule 11(c)(1)(C) plea agreement and none of the
exceptions apply, we dismiss the appeal of Ford’s sentence.
In accordance with Anders, we have reviewed the entire
record in this case and conclude that there are no meritorious
issues for appeal. We therefore affirm Ford’s conviction.
Otherwise, we grant the Government’s motion and dismiss the
appeal as to Ford’s sentence. Finally, we deny appellate
counsel’s motion to withdraw from representation at this time.
This court requires that counsel inform Ford, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Ford 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 Ford. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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