UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4651
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CALVIN COLWETH GARNER, JR., a/k/a Spoke,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:10-cr-00079-BO-1)
Submitted: March 28, 2013 Decided: April 4, 2013
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, 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Unpublished opinions are not binding precedent in this circuit.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:
Calvin Colweth Garner, Jr., pled guilty to conspiracy
to distribute and possess with intent to distribute fifty grams
or more of cocaine base and five kilograms or more of cocaine,
21 U.S.C. § 846 (2006), and conspiracy to launder monetary
instruments, 18 U.S.C. § 1956(h) (2006). The district court
granted the Government’s motion for a downward departure based
on Garner’s substantial assistance and imposed a below-
Guidelines sentence of 330 months’ imprisonment. On appeal,
Garner’s attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his view,
there are no meritorious grounds for appeal but questioning
whether (1) the district court sufficiently complied with Fed.
R. Crim. P. 11 in accepting Garner’s guilty plea; (2) the
appellate waiver in the plea agreement is valid; and (3) the
district court erred in imposing a four-level sentencing
enhancement for Garner’s leadership role in the offense. Garner
has filed a pro se supplemental brief also challenging the
enhancement for his role in the offense, as well as the
sentencing court’s drug quantity determination and imposition of
enhancements for obstruction of justice and possession of a
firearm. The Government has not filed a response. We affirm.
Prior to accepting a guilty plea, the district court
must conduct a plea colloquy in which it informs the defendant
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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 did not result from force,
threats, or promises not contained in the plea agreement. Fed.
R. Crim. P. 11(b)(2). Because Garner 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).
We find that the district court substantially complied
with Rule 11’s requirements, and committed no error warranting
correction on plain error review. We therefore affirm Garner’s
convictions.
Next, Garner’s counsel questions the validity of
Garner’s appeal waiver. In his plea agreement, Garner agreed to
waive his right to appeal any sentence unless such sentence
exceeded the Sentencing Guidelines range established at
sentencing. However, the Government has not sought to enforce
the waiver. It is this court’s policy not to raise this issue
sua sponte. United States v. Poindexter, 492 F.3d 263, 271 (4th
Cir. 2007) (stating that, if Anders brief is filed in case with
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appeal waiver, Government’s failure to respond “allow[s] this
court to perform the required Anders review”); see United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (stating that, where
Government expressly elects not to raise waiver, this court may
decline to consider it). Accordingly, by failing to file a
response, the Government cannot enforce the appellate waiver in
Garner’s plea agreement.
Last, Garner’s appellate counsel questions the
reasonableness of Garner’s sentence, specifically challenging
the district court’s imposition of a four-level enhancement for
Garner’s role in the offense. In addition to raising this same
claim, Garner’s pro se supplemental brief also challenges the
sentencing court’s drug quantity determination (based on the
presentence report) and the sentencing court’s enhancements for
obstruction of justice and possession of a firearm.
This court reviews Garner’s sentence for
reasonableness under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. In
determining procedural reasonableness, this court considers
whether the district court properly calculated the defendant’s
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
(2006) factors, selected a sentence based on clearly erroneous
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facts, or failed to explain sufficiently the selected sentence.
Id. at 49-51. If the sentence is free of significant procedural
error, this court reviews it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id.
at 51.
Because Garner withdrew all of his objections to the
presentence report at sentencing, including the claims regarding
drug quantity, the role in the offense enhancement, and the
firearm enhancement, appellate review of these claims is waived.
Generally, unpreserved errors in sentencing are reviewed for
plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may
waive appellate review of a sentencing error if he raises it and
then knowingly withdraws an objection to the error before the
district court. See United States v. Horsfall, 552 F.3d 1275,
1283 (11th Cir. 2008) (finding that defendant’s withdrawal of
objection to upward departure precluded appellate review of
departure); United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002) (“A party who identifies an issue, and then
explicitly withdraws it, has waived the issue.”). An appellant
is precluded from challenging a waived issue on appeal. See
Rodriguez, 311 F.3d at 437. Such a waiver is distinguishable
“from a situation in which a party fails to make a timely
assertion of a right—what courts typically call a ‘forfeiture,’”
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id. (quoting Olano, 507 U.S. at 733), which, as noted above, may
be reviewed on appeal for plain error. See Olano, 507 U.S. at
733-34. Because Garner expressly withdrew his objections at
sentencing to the drug quantity determination and the
enhancements of which he now seeks review, this court is
precluded from considering these issues on appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Garner’s convictions and sentence. This
court requires that counsel inform Garner, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Garner 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 Garner. 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
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