UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4705
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLYON HINNANT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00354-H-1)
Submitted: March 20, 2013 Decided: April 19, 2013
Before KING, DIAZ, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Clyon Hinnant appeals his conviction and 48-month
sentence, following a guilty plea, to one count of receiving a
bribe as a public official, in violation of 18 U.S.C.
§ 201(b)(2) (2006), and one count of conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349 (2006). (E.R. 84-90,
181-86). Hinnant’s 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 abused its discretion by failing to make an
individualized assessment of Hinnant’s situation when it refused
to grant a downward variance. Hinnant was notified of his right
to file a supplemental pro se brief but has not done so. The
Government has moved to dismiss the appeal, asserting that the
appeal is precluded by Hinnant’s waiver of appellate rights in
his plea agreement. We dismiss in part and affirm in part.
A defendant may, in a valid plea agreement, 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). This court reviews de novo whether a
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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 Fed. R. Crim. P. 11 colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). However, we will not enforce
an otherwise valid waiver if enforcing the waiver would result
in a miscarriage of justice. Id.
Our review of the record shows that Hinnant knowingly
and voluntarily waived the right to appeal his sentence. We
further conclude that the issue Hinnant now asserts on appeal is
within the scope of the waiver. Hinnant waived the right to
appeal his sentence unless the district court imposed a sentence
in excess of the applicable Guidelines range. Because Hinnant
challenges the reasonableness of his sentence, and the district
court imposed a within-Guidelines sentence, the issue Hinnant
seeks to raise on appeal falls squarely within the scope of the
appellate waiver. We therefore grant the Government’s motion to
dismiss Hinnant’s appeal of his sentence.
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The waiver provision, however, does not preclude our
review of Hinnant’s 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 Hinnant did not seek to withdraw his
guilty plea or otherwise object during his Rule 11 hearing, this
court reviews his plea colloquy for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
We find that the district court substantially complied
with Rule 11 in accepting Hinnant’s plea. Although the district
court failed to inform Hinnant that he could be prosecuted for
perjury if he lied during the hearing, see Fed. R. Crim. P.
11(b)(1)(A), and did not explicitly state that Hinnant had the
right to plead not guilty, see Fed. R. Crim. P. 11(b)(1)(B), we
find that these minor omissions did not affect Hinnant’s
substantial rights. Accordingly, we find that Hinnant’s plea
was knowing and voluntary, and, consequently, final and binding.
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See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992)
(en banc).
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Hinnant’s conviction, and dismiss the appeal as to his
sentence. This court requires that counsel inform Hinnant, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Hinnant requests that a
petition be filed but counsel believes 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 Hinnant. 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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