UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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