United States v. Carter

267 F. App'x 203

4th Cir.

2008

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee, v. Jerrell Watson CARTER, Defendant-Appellant.

No. 07-4442.

United States Court of Appeals, Fourth Circuit.

Decided: Jan. 22, 2008.

203

Submitted: Jan. 17, 2008.

Sidney H. Kirstein, Lynchburg, Virginia, for Appellant. John L. Brownlee, United States Attorney, William F. Gould, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Jerrell Watson Carter pled guilty to possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841 (2000), and aiding and abetting the use of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2000). On appeal, Carter claims that the Government‘s proffer at the Fed.R.Crim.P. 11 hearing was insufficient to support the firearm conviction and that the district court incorrectly calculated his criminal history category. The Government asserts the appeal should be dismissed because Carter knowingly and voluntarily waived his right to appeal. Because we find the appeal waiver was knowing and voluntary and that the issues raised by Carter are within the scope of the waiver, we dismiss the appeal.

Carter‘s plea agreement contained an appellate waiver that stated he waived the right to appeal “any and all issues related to [his] guilty plea and sentencing.” The record reveals that Carter agreed to this waiver knowingly and voluntarily.^* See United States v. Blick, 408 F.3d 162, 168-69 (4th Cir.2005). Moreover, Carter does not dispute that the issues he raises on appeal fall within the purview of his appellate waiver. See id. at 169-70.

Accordingly, we dismiss Carter‘s appeal. 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.

DISMISSED.

UNITED STATES of America, Plaintiff-Appellee, v. Quedolthuis Miguel JONES, Defendant-Appellant.

No. 07-4383.

United States Court of Appeals, Fourth Circuit.

Decided: Jan. 22, 2008.

204

Submitted: Jan. 17, 2008.

Mark P. Foster, Jr., Nixon, Park, Gronquist & Foster, P.L.L.C., Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Quedolthuis Miguel Jones appeals his sentence imposed following a guilty plea to conspiring to commit a robbery in violation of 18 U.S.C. § 1951 (2000); robbery in violation of § 1951; and using or carrying a firearm in violation of 18 U.S.C. § 924(c) (West 2000 and Supp.2007). Jones was sentenced to 30 months’ imprisonment on the § 1951 violations and an additional 84 months on the § 924(c) violation.

On appeal, Jones asserts that he should have been sentenced to no more than five years for the § 924(c) violation. According to Jones, the district court‘s enhancement of his sentence by two years based on a finding that the firearm was brandished, which was not alleged in the indictment, admitted by Jones, or found by a jury beyond a reasonable doubt, violated his Sixth Amendment right to trial by jury. Jones bases his argument on Cunningham v. California, 549 U.S. 270 (2007), which struck down California‘s determinate sentencing law. However, as Jones acknowledges, the Supreme Court, in Harris v. United States, 536 U.S. 545 (2002), has already decided this issue adversely to his position. Accordingly, as the Supreme Court has not overruled Harris, we affirm the judgment of the district court. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). We dispense with oral argument as the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

Notes

Although the district court failed to question Carter at the Rule 11 hearing about the appellate waiver in violation of Fed.R.Civ.P. 11(b)(1)(N), because Carter does not assert that he was unaware of the waiver or that the district court‘s failure affected the outcome of his guilty plea, he cannot establish plain error. See (holding that the district court‘s failure to strictly comply with Rule 11 is subject to plain error review).