UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7937
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
MICHAEL LEONARD WOODARD, JR.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00191-BO-1; 5:12-cv-00106-BO)
Submitted: May 21, 2013 Decided: June 6, 2013
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Ethan A. Ontjes, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellant. Thomas P. McNamara,
Federal Public Defender, Devon L. Donahue, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Woodard pleaded guilty to possession with
intent to distribute marijuana and MDMA (ecstasy), in violation
of 21 U.S.C. § 841(a) (2006), and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (2006). The district court originally sentenced
Woodard to 180 months of imprisonment. Woodard appealed, and
appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning whether the
district court erred in finding that Woodard was a career
offender. We affirmed Woodard’s conviction but granted the
Government’s motion to dismiss Woodard’s appeal of his sentence
based on the appellate waiver. See United States v. Woodard,
450 F. App’x 310 (4th Cir. 2011) (unpublished).
Woodard then filed a 28 U.S.C.A. § 2255 (West Supp.
2012) motion, again arguing that he did not qualify as a career
offender, citing this court’s decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The district
court granted Woodard’s motion, finding that this issue fell
outside the scope of the waiver of collateral review and that
under Simmons, Woodard no longer qualified as a career offender.
The district court then resentenced Woodard to a total of 101
months of imprisonment. The Government now appeals, arguing
that the district court erred in concluding that the career
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offender issue was outside the scope of the appellate waiver and
that such a claim is not cognizable on collateral review unless
a defendant is actually innocent of the underlying offenses.
We review the validity of an appeal waiver de novo.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). We
will enforce an appeal waiver to preclude a defendant from
raising an issue if the waiver is valid and the issue on appeal
is within the scope of the waiver. Id.; see also United
States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (defendant
may waive the right to collaterally attack his conviction and
sentence as long as the waiver is knowing and voluntary). We
have thoroughly reviewed the record and conclude that the
district court erred in concluding that Woodard’s claim fell
outside the scope of his appellate waiver. This court has
already determined on direct appeal that Woodard’s appellate
waiver was knowing and voluntary, and that the Simmons issue
fell within the scope of the appellate waiver. See United
States v. Woodard, 450 F. App’x 310 (4th Cir. 2011)
(unpublished); see also Lemaster, 403 F.3d at 220 n.2 (“[W]e see
no reason to distinguish between waivers of direct-appeal rights
and waivers of collateral-attack rights.”).
Moreover, we conclude that this claim is not the type
of issue that Woodard could not have reasonably contemplated at
the time of his plea agreement. See Blick, 408 F.3d at 172
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(claims that the district court erred in calculating the loss
amount under the Guidelines and that the sentencing enhancements
under the Guidelines violated the subsequently-decided opinion
in United States v. Booker, 543 U.S. 220 (2005), did not fall
outside the scope of the appellate waiver). Finally, our
unpublished decision in United States v. Yancey, 463 F. App’x
202, 203 (4th Cir. 2012) (unpublished), is inapplicable to this
appeal as the government there conceded at sentencing that the
defendant could appeal his classification as a career offender.
Accordingly, we vacate the district court’s order
granting Woodard’s § 2255 motion, vacate the sentence, and
remand with instructions to enter the original judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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