United States v. Powell, 4th Cir. (2009)
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Scribd Government DocsUnited States v. Powell, 4th Cir. (2009)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD EUGENE BOWLING POWELL,
Defendant - Appellant.
No. 09-4103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACEY SCOTT RICH,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Florence.
R. Bryan Harwell, District
Judge. (4:08-cr-00057-RBH-1; 4:08-cr-00057-RBH-2)
Submitted:
October 8, 2009
Decided:
Before WILKINSON, KING, and AGEE, Circuit Judges.
October 23, 2009
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina; Beattie Balentine Ashmore, Greenville,
South Carolina, for Appellants.
Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant
Powell
and
to
Tracey
plea
Scott
agreements,
Rich
pled
Richard
guilty
Eugene
to
one
Bowling
count
of
interference with commerce by robbery, in violation of 18 U.S.C.
1951(a), 2 (2006), and one count of using, carrying, and
possessing firearms during, in relation to, and in furtherance
of, a crime of violence, in violation of 18 U.S.C. 924(c), 2
(2006).
The plea agreements included stipulated sentences of
twenty-five
years
for
Powell
and
fifteen
years
for
Rich,
in
accordance with Fed. R. Crim. P. 11(c)(1)(C), in exchange for
the
Government
indictment.
dismissing
the
remaining
counts
in
the
The district court accepted the plea agreements
and, therefore, was bound to sentence Powell to 300 months and
Rich to 180 months, which it did.
On
accordance
appeal,
with
counsel
Anders
v.
have
filed
California,
386
joint
U.S.
brief
738
in
(1967),
stating that, in their view, there are no meritorious issues for
appeal.
Counsel question, however, whether the district court
fully complied with Rule 11 of the Federal Rules of Criminal
Procedure
in
accepting
sentences are reasonable.
the
guilty
pleas
and
whether
the
Powell and Rich were advised of their
right to file a pro se supplemental brief, but they have not
filed a brief.
The Government declined to file a brief.
Because neither Powell nor Rich moved in the district
court to withdraw his guilty plea, any error in the Rule 11
hearing is reviewed for plain error. *
United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002).
To establish plain error,
appellants must show:
(1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.
States
v.
Massenburg,
564
F.3d
337,
342-43
(reviewing unpreserved Rule 11 error).
the
error
lies
within
our
(4th
United
Cir.
2009)
The decision to correct
discretion,
and
we
exercise
that
discretion only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.
Id. at
343 (internal quotation marks and citations omitted).
Counsel have not identified any error in the Rule 11
hearings,
and
district
court
our
review
ensured
the
that
appellants
therefore
The
guilty
pleas
were
See United States v. DeFusco, 949 F.2d 114, 116, 119-20
We
by
none.
basis.
1991).
supported
reveals
and
Cir.
and
record
knowing
(4th
voluntary
of
affirm
sufficient
Powells
and
factual
Richs
convictions.
Next, Powell and Rich challenge the reasonableness of
their sentences.
We conclude, however, that we do not have
jurisdiction
this
over
portion
of
the
appeals.
The
federal
Powell filed a pro se motion to withdraw his plea, but
withdrew the motion before sentencing.
statute
governing
3742(c)
appellate
(2006),
limits
review
the
of
sentence,
circumstances
18
under
U.S.C.
which
defendant may appeal a sentence to which he stipulated in a Rule
11(c)(1)(C)
plea
agreement
to
claims
that
his
sentence
was
imposed in violation of law [or] was imposed as a result of an
incorrect application of the sentencing guidelines[.]
United
States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998);
United States v. Littlefield, 105 F.3d 527, 527-28 (9th Cir.
1997).
Here,
violation
of
appellants
law.
sentences
Powells
were
216-month
not
sentence
imposed
and
in
Richs
ninety-six-month sentence on the robbery count were well within
the
240-month
(2006).
The
firearm
count
statutory
maximum.
See
18
eighty-four-month
consecutive
were
statute,
mandated
by
maximum sentence of life imprisonment.
U.S.C.
sentences
and
were
guidelines.
result
of
an
on
the
within
the
See United States v.
Cristobal, 293 F.3d 134, 146-47 (4th Cir. 2002).
sentences
1951(a)
incorrect
Nor are the
application
of
the
A sentence imposed pursuant to a Rule 11(c)(1)(C)
plea agreement is contractual and not based upon the guidelines.
See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.
2005)
(stating
that
[a]
sentence
imposed
under
Rule
11(c)(1)(C) plea arises directly from the agreement itself, not
from the Guidelines); Littlefield, 105 F.3d at 528.
5
Because
3742(c) bars review of sentences imposed pursuant to a Rule
11(c)(1)(C) plea agreement and none of the exceptions applies,
we dismiss the appeals of the sentences.
In accordance with Anders, we have reviewed the entire
records in these cases and have found no meritorious issues for
appeal.
We therefore affirm the convictions and dismiss the
appeals
of
the
sentences.
This
court
requires
that
counsel
inform their clients, in writing, of the right to petition the
Supreme Court of the United States for further review.
If a
client 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.
Counsels motion must state that a copy thereof was served on
the client.
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.
AFFIRMED IN PART;
DISMISSED IN PART
