USCA4 Appeal: 21-4597 Doc: 29 Filed: 11/15/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4597
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEXTER JAMAL WILLIAMS, a/k/a Baby D,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Richard E. Myers, II, Chief District Judge. (5:20-cr-00250-M-1)
Submitted: October 31, 2022 Decided: November 15, 2022
Before THACKER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
ON BRIEF: James W. Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC,
Asheville, North Carolina, for Appellant. David A. Bragdon, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dexter Jamal Williams appeals his convictions and 168-month sentence imposed
following his guilty plea to Hobbs Act robbery (Count 1), in violation of 18 U.S.C. §§ 2,
1951, and brandishing a firearm in furtherance of a crime of violence (Count 2), in violation
of 18 U.S.C. §§ 2, 924(c). Williams’ 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: (1) whether aiding and abetting Hobbs Act robbery is a predicate crime of
violence supporting Williams’ § 924(c) conviction; and (2) whether Williams’ sentence
(a) is procedurally unreasonable, (b) was tainted by a partial closure of the sentencing
hearing that violated his right to a public trial, (c) was supported by unreliable witness
testimony, (d) failed to satisfy the need to avoid unwarranted sentencing disparities, and
(e) unreasonably relied upon a finding that Williams’ offense conduct was violent.
Williams was notified of his right to file a pro se supplemental brief but has not done so.
The Government moves to dismiss the appeal pursuant to the appeal waiver in the plea
agreement, which Williams opposes. We dismiss in part and affirm in part.
We review the enforceability of an appeal waiver de novo. United States v. McLeod,
972 F.3d 637, 640 (4th Cir. 2020). “When the government seeks to enforce an appeal
waiver and has not breached the plea agreement, we will enforce the waiver if it is valid
and if the issue being appealed falls within its scope.” United States v. Beck, 957 F.3d 440,
445 (4th Cir. 2020).
“A ‘valid’ appeal waiver is one entered by the defendant knowingly and
intelligently, a determination that we make by considering the totality of the
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circumstances.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir. 2021). “Generally
though, if a district court questions a defendant regarding the waiver of appellate rights
during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the defendant
understood the full significance of the waiver, the waiver is valid.” United States v. McCoy,
895 F.3d 358, 362 (4th Cir. 2018) (internal quotation marks omitted).
Williams does not contest the validity of the waiver, and our review of the record
confirms that he knowingly and voluntarily waived his right to appeal. Thus, we will
enforce the waiver to bar all issues within its scope.
Counsel asserts that the waiver does not preclude Williams’ appeal, both because
specific issues he raises cannot validly be waived and because the waiver’s language is too
ambiguous to permit its application to Williams’ appeal. Addressing first the waiver’s
language, we interpret plea agreements by “look[ing] to the plain language of the
agreement, construing it in the ordinary sense,” and apply[ing] principles of contract law
to ensure that each party receives the benefit of the bargain.” Boutcher, 998 F.3d at 608
(internal quotation marks omitted). “Because plea agreements necessarily implicate a
defendant’s constitutional rights, we analyze those agreements with a greater degree of
scrutiny than we would evaluate a contract in a civil context.” Id. When the language of
the plea agreement is ambiguous, we construe it against the Government. United States v.
Under Seal, 902 F.3d 412, 417-18 (4th Cir. 2018). However, we will decline to “create an
ambiguity where none legitimately exists.” United States v. Tate, 845 F.3d 571, 575 (4th
Cir. 2017).
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Here, we find no ambiguity in the waiver’s plain language. Counsel asserts that the
waiver does not apply because it bars only those appeals challenging both the conviction
and the sentence, while Williams appeals only his sentence. Counsel’s contention is belied
by the arguments raised in the Anders brief and the response in opposition to the motion to
dismiss. We likewise reject counsel’s assertion that the waiver exempts challenges to a
sentence as “groundless.” Instead, the waiver’s broad language squarely encompasses the
defects that counsel seeks to assert.
Turning to the scope of the appeal waiver, Williams’ waiver does not preclude him
from challenging the validity of his guilty plea. See McCoy, 895 F.3d at 364. Before
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 rights he is
relinquishing by pleading guilty, the charge to which he is pleading, and the maximum and
any 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 is voluntary and not the result of force, threats, or promises ancillary to 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).
Because Williams did not seek to withdraw his guilty plea or otherwise object to the
plea hearing in the district court, we review the adequacy of the Rule 11 colloquy for plain
error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014); see United States v.
Harris, 890 F.3d 480, 491 (4th Cir. 2018) (describing standard). Our review of the record
confirms that the district court complied with Rule 11, ensuring that the plea was knowing,
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voluntary, and supported by an independent factual basis. We therefore conclude that
Williams’ guilty plea is valid.
Next, as counsel observes, “a defendant who waives his right to an appeal does not
subject himself to being sentenced entirely at the whim of the district court.” United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Thus, even a valid appeal waiver will not
preclude a defendant from raising issues on appeal that “fall within the narrow class of
claims that we have allowed a defendant to raise on direct appeal despite a general waiver
of appellate rights.” United States v. Lemaster, 403 F.3d 216, 220 n.2 (4th Cir. 2005); see
United States v. Copeland, 707 F.3d 522, 530 (4th Cir. 2013) (generally describing limited
class of claims exempted from appeal waivers).
Counsel argues that several of the claims raised in the Anders brief fall within the
limited class of nonwaivable claims exempted from valid appeal waivers. We are
unpersuaded. First, counsel asserts that Williams’ challenge to his § 924(c) conviction is
nonwaivable because we will “refuse to enforce an otherwise valid waiver if to do so would
result in a miscarriage of justice.” United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005) (internal quotation marks omitted). However, Williams cannot make “[a] proper
showing of actual innocence . . . sufficient to satisfy the miscarriage of justice
requirement.” United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016) (internal
quotation marks omitted); see United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019)
(holding that Hobbs Act robbery is categorically crime of violence under force clause of
§ 924(c)); United States v. Ali, 991 F.3d 561, 574 (4th Cir.) (“[A]iding and abetting a crime
of violence is also categorically a crime of violence.”), cert. denied, 142 S. Ct. 486 (2021).
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Next, counsel argues that Williams’ challenges to the district court’s explanation
and reliance on unreliable witness testimony are not subject to waiver under Marin. To the
contrary, such routine claims of procedural error fall well outside the narrow class of
nonwaivable claims. We also conclude that Williams’ challenge to the temporary closure
of the sentencing hearing falls within the waiver’s broad compass. See United States v.
Shehadeh, 962 F.3d 1096, 1102 (9th Cir. 2020).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal that would fall outside the scope of the appeal
waiver. Accordingly, we deny the Government’s motion to dismiss in part, affirm as to all
nonwaivable issues, grant the Government’s motion to dismiss in part, and dismiss as to
all remaining issues.
We deny counsel’s motion to withdraw from representation. This court requires
that counsel inform Williams, in writing, of the right to petition the Supreme Court of the
United States for further review. If Williams 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 Williams.
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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