USCA4 Appeal: 22-4579 Doc: 36 Filed: 07/27/2023 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAMARI TYRIQ WIGGINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:21-cr-00444-D-1)
Submitted: July 25, 2023 Decided: July 27, 2023
Before WYNN and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part, dismissed in part, and remanded with instructions by unpublished per
curiam opinion.
ON BRIEF: Damon J. Chetson, CHETSON FIRM, PLLC, Raleigh, North Carolina, for
Appellant. David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kamari Tyriq Wiggins seeks to appeal his conviction and sentence imposed
following his guilty plea to possession of a stolen firearm, in violation of 18 U.S.C.
§§ 922(j), 924(a)(2). Wiggins’ counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal but
questioning the validity of Wiggins’ guilty plea and whether his sentence is reasonable.
Although advised of his right to file a pro se brief, Wiggins has not done so. The
Government has moved to dismiss the appeal based on the waiver of appellate rights in
Wiggins’ plea agreement. For the following reasons, we affirm in part, dismiss in part, and
remand in part.
First, Wiggins’ waiver of appellate rights does not prevent him from challenging the
validity of the plea itself. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018).
Prior to accepting a guilty plea, a 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 applicable mandatory minimum sentence, the maximum
possible penalty he faces, and the various rights he is relinquishing by pleading guilty. Fed.
R. Crim. P. 11(b)(1); United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016). The
court also must ensure that the defendant’s plea is voluntary, is supported by an
independent factual basis, and did not result from force, threats, or extrinsic promises. Fed.
R. Crim. P. 11(b)(2), (3); Williams, 811 F.3d at 622.
Because Wiggins neither raised an objection during the Fed. R. Crim. P. 11
proceeding nor moved to withdraw his guilty plea in the district court, we review the plea
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colloquy only for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).
To establish plain error, Wiggins “must show that: (1) an error occurred; (2) the error was
plain; and (3) the error affected his substantial rights.” United States v. Lockhart, 947 F.3d
187, 191 (4th Cir. 2020) (en banc). We have reviewed the record and conclude that the
magistrate judge * fully complied with the requirements of Rule 11 in conducting Wiggins’
plea colloquy. See Williams, 811 F.3d at 622. Therefore, Wiggins’ plea is valid.
Next, we review de novo the validity of an appeal waiver. United States v. Cohen,
888 F.3d 667, 678 (4th Cir. 2018). We generally will enforce a waiver if it is valid and the
issue being appealed falls within the scope of the waiver. United States v. Dillard, 891
F.3d 151, 156 (4th Cir. 2018). A defendant’s waiver of appellate rights is valid if he entered
it “knowingly and intelligently.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir.
2010). After reviewing the plea agreement and the transcript of the Rule 11 hearing, we
conclude that Wiggins knowingly and voluntarily waived his right to appeal and that the
waiver is valid and enforceable. Accordingly, we grant the Government’s motion to
dismiss Wiggins’ appeal as to all issues within the waiver’s scope.
We have reviewed the record in accordance with Anders and have identified one
meritorious issue that falls outside the scope of the waiver. In imposing Wiggins’
supervised release conditions at sentencing, the district court announced several special
conditions of supervised release, including, inter alia, a requirement that Wiggins support
*
Wiggins consented to proceed before the magistrate judge for purposes of the Rule
11 hearing.
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his children. The written judgment, however, requires Wiggins to support his dependents
during his term of supervised release. In the context of this record, which reflects no
dependents other than Wiggins’ children, we conclude that it is clear that the district court’s
intention was to require Wiggins to support his children. Thus, “[t]he proper remedy is for
the [d]istrict [c]ourt to correct the written judgment so that it conforms with the sentencing
court’s oral pronouncements.” United States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965).
We therefore remand with instructions to conform the written judgment with the oral
pronouncement.
Accordingly, for the foregoing reasons, we affirm the district court’s judgment in
part, dismiss the appeal in part, and remand to the district court with instructions to correct
the written judgment to conform with the district court’s oral pronouncement, leaving the
sentence, including the remaining conditions of supervised release, undisturbed.
This court requires that counsel inform Wiggins, in writing, of the right to petition
the Supreme Court of the United States for further review. If Wiggins 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 Wiggins. 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.
AFFIRMED IN PART,
DISMISSED IN PART,
AND REMANDED WITH INSTRUCTIONS
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