United States v. Dominique Woods

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4781

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DOMINIQUE ANTOINE WOODS, a/k/a Stat, a/k/a Stack,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:12-cr-00028-BO-1)

Submitted: May 13, 2013 Decided: May 31, 2013

Before SHEDD, DUNCAN, and WYNN, 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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:

Dominique Antoine Woods was sentenced to thirty-six

months’ imprisonment after pleading guilty, pursuant to a

written plea agreement, to one count of conspiracy to distribute

and possess with intent to distribute cocaine, in violation of

21 U.S.C. §§ 841, 846 (2006). As part of his plea agreement,

Woods waived the right to appeal his sentence as long as it did

not exceed the Guidelines range established at sentencing. On

appeal, counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), certifying that there are no meritorious

issues for appeal but questioning whether Woods’ sentence is

substantively unreasonable. The Government has moved to dismiss

Woods’ appeal, asserting that he waived the right to appeal his

sentence in the plea agreement. We dismiss in part and affirm

in part.

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). 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). To determine

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whether a waiver is knowing and intelligent, this court examines

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, this Court will refuse to enforce an otherwise valid

waiver if enforcing the waiver would result in a miscarriage of

justice. Id.

Upon review of the plea agreement and the transcript

of the Fed. R. Crim. P. 11 hearing, we conclude that Woods

knowingly and intelligently agreed to the waiver of appellate

rights as set forth in the plea agreement. During the Rule 11

colloquy, the court reviewed the terms of the plea agreement,

including the waiver provision, with Woods, and Woods affirmed

that he understood those terms. Moreover, Woods does not

contest the validity of the waiver either in his Anders brief or

in his response to the Government’s motion to dismiss. Because

Woods challenges the substantive reasonableness of his below-

Guidelines sentence, the issue he seeks to raise on appeal falls

squarely within the scope of the appellate waiver. Accordingly,

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we grant the Government’s motion to dismiss Woods’ appeal of his

sentence.

The appellate waiver, however, does not preclude this

court’s review of Woods’ conviction pursuant to Anders. Prior

to accepting a guilty plea, a 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 made

freely and voluntarily and was supported by a factual basis.

Fed. R. Crim. P. 11(b)(2), (3).

Because Woods did not move to withdraw his guilty plea

in the district court or raise any objections to the Rule 11

colloquy, the colloquy is reviewed for plain error. United

States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To

demonstrate plain error, a defendant must show that: (1) there

was error, (2) the error was plain, and (3) the error affected

his “substantial rights.” United States v. Olano, 507 U.S. 725,

732 (1993). To establish that a Rule 11 error has affected a

defendant’s substantial rights, the defendant must “show a

reasonable probability that, but for the error, he would not

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have entered the plea.” United States v. Dominguez Benitez, 542

U.S. 74, 83 (2004). Our review of the record reveals that the

district court substantially complied with Rule 11 in accepting

Woods’ guilty plea. Importantly, the district court properly

ensured that Woods’ plea was knowing, voluntary, and supported

by a sufficient factual basis.

In accordance with Anders, we have reviewed the record

in this case and have found no unwaived meritorious issues for

appeal. We therefore affirm Woods’ conviction.

This court requires that counsel inform Woods, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Woods 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 Woods. 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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