UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEDIEKA MCCLAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00058-RBH-1)
Submitted: May 7, 2013 Decided: June 11, 2013
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Alfred William Walker Bethea,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sedeika McClam was sentenced to 262 months’
imprisonment after pleading guilty, pursuant to a plea
agreement, to possession with intent to distribute marijuana and
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C),
(b)(1)(D) (2006), and possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006). On appeal, 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 McClam’s guilty plea was invalid and whether his
sentence was unreasonable. The Government moved to dismiss
McClam’s appeal, asserting that he waived the right to appeal
his conviction and sentence in the plea agreement. We dismiss
in part and affirm in part.
I.
Rule 11 requires that the trial court, prior to
accepting a guilty plea, conduct a plea colloquy in which it
informs the defendant of the charges to which he is pleading and
determines that he comprehends the nature of those charges, 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). The district court must also ensure that the defendant’s
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plea is voluntary, and that there is a factual basis for the
plea. Fed. R. Crim. P. 11(b)(2), (3). In reviewing compliance
with Rule 11, this court accords deference to the trial court’s
decision as to how to best conduct the mandated colloquy with
the defendant. DeFusco, 949 F.2d at 116.
Because McClam 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, 524-26 (4th Cir. 2002). To
demonstrate plain error, a defendant must show: (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,
732-34 (1992). To establish that a Rule 11 error has occurred,
the defendant “must show a reasonable probability that, but for
the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Upon review of the transcript of the Fed. R. Crim. P.
11 hearing, we conclude that the district court complied with
Rule 11’s requirements. The court ensured that McClam’s guilty
plea was knowing and voluntary and supported by a factual basis,
and that McClam understood the rights he was giving up by
pleading guilty and the sentence he faced.
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II.
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 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,
we will refuse to enforce an otherwise valid waiver if
enforcement 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 McClam
knowingly and intelligently agreed to the waiver of appellate
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rights as set forth in the plea agreement. During the Rule 11
hearing the court reviewed the terms of the plea agreement,
including the waiver provision, with McClam, and McClam affirmed
that he understood those terms. Moreover, McClam does not
contest the validity of the waiver in his Anders brief or in his
response to the Government’s motion to dismiss the appeal.
We further conclude that McClam’s challenge to the
reasonableness of his sentence falls squarely within the scope
of the waiver provision. McClam expressly agreed to waive the
right to contest his sentence in any direct appeal. We
therefore grant the Government’s motion to dismiss McClam’s
appeal of his sentence.
III.
Counsel for McClam has also filed a letter pursuant to
Fed. R. App. P. 28(j), citing the Supreme Court’s recent
decision in Florida v. Jardines, 133 S. Ct. 1409 (2013) (use of
drug-sniffing dog on defendant’s front porch was search within
meaning of Fourth Amendment). Before pleading guilty, McClam
filed a motion to suppress, and counsel now contends that had
Florida v. Jardines then been decided, McClam would not have
withdrawn his motion. However, McClam has waived the Fourth
Amendment claim by knowingly and voluntarily pleading guilty.
United States v. Bowles, 602 F.3d 581, 582-83 (4th Cir. 2010)
(guilty plea constitutes waiver of all antecedent
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nonjurisdictional defects). Because the district court properly
conducted the Rule 11 colloquy, and because McClam did not
attempt to preserve the issue for review by entering a
conditional guilty plea, McClam has relinquished the right to
raise this issue on appeal. Id. That Jardines had not yet been
decided when he withdrew the motion provides no excuse for
McClam’s failure to preserve the issue for appellate review.
See Brady v. United States, 397 U.S. 742, 757 (1970) (“[A]
voluntary plea of guilty intelligently made in the light of the
then applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty
premise.”).
IV.
In accordance with Anders, we have reviewed the entire
record and have found no unwaived meritorious issues for appeal.
We therefore affirm McClam’s conviction.
This court requires that counsel inform McClam, in
writing, of his right to petition the Supreme Court of the
United States for further review. If McClam 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 McClam. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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