UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAYTON JARROD DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:11-cr-00057-BO-2)
Submitted: January 15, 2013 Decided: January 30, 2013
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dayton Jarrod Davis appeals his conviction and 188-
month sentence, following his guilty plea, pursuant to a plea
agreement, to conspiracy to distribute and possess with intent
to distribute twenty-eight grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2006). Davis’ counsel 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 erred in sentencing Davis
to 188 months’ imprisonment based on allegedly incredible
evidence of relevant conduct. Davis was informed of his right
to file a pro se supplemental brief, but did not do so.
Upon our initial review of the appeal, we directed
supplemental briefing regarding whether the district court
failed to provide an adequate individualized assessment as
required by United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009), and if so, whether such error was harmless. Davis filed
a supplemental brief asserting that the district court failed to
provide an adequate individualized assessment and that its error
was not harmless, and that his sentence therefore was
procedurally unreasonable. The Government has now moved to
dismiss, asserting that the appeal is precluded by Davis’ waiver
of appellate rights in his plea agreement. We grant the
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Government’s motion in part, dismiss in part, and affirm in
part.
A defendant may 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). We
review 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 was knowing and
intelligent, we examine the totality of the circumstances,
including the defendant’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, we will refuse to enforce an
otherwise valid waiver if enforcing the waiver would result in a
miscarriage of justice. Id.
Our review of the record leads us to conclude that
Davis knowingly and voluntarily waived the right to appeal his
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sentence. We further conclude that the issue Davis now asserts
on appeal is within the scope of the waiver. Davis waived the
right to appeal his sentence, unless the district court imposed
a sentence in excess of the applicable Guidelines range.
Because Davis challenges the reasonableness of his sentence, and
the district court imposed a within-Guidelines sentence, the
issue Davis seeks to raise on appeal falls squarely within the
scope of the appellate waiver. We therefore grant the
Government’s motion to dismiss Davis’ appeal of his sentence.
The waiver provision, however, does not preclude our
review of Davis’ conviction pursuant to Anders. Prior to
accepting a guilty plea, the district court must conduct a plea
colloquy in which it informs the defendant of, and determines
that the defendant understands: the nature of the charges to
which he is pleading guilty, any mandatory minimum penalty, the
maximum possible penalty, and the rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Additionally, the
district court must ensure that the defendant’s plea was
voluntary and supported by a factual basis. Fed. R. Crim. P.
11(b)(2), (3). Because Davis did not move to withdraw his
guilty plea in the district court or raise any objections to the
Rule 11 colloquy, we review the colloquy for plain error.
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).
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We find that the district court fully complied with
Rule 11’s requirements, and that Davis’ guilty plea was knowing,
voluntary, and supported by a factual basis. In accordance with
Anders, we have reviewed the record and have found no
meritorious issues for appeal. We therefore affirm Davis’
conviction.
This court requires that counsel inform Davis, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Davis requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Davis. 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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