United States v. David Furlow

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 23, 2023
• Docket: 22-4422
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4422 Doc: 35 Filed: 02/23/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4422

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID RICARDO FURLOW,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:20-cr-00015-FL-1)

Submitted: February 21, 2023 Decided: February 23, 2023

Before NIEMEYER and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4422 Doc: 35 Filed: 02/23/2023 Pg: 2 of 4

PER CURIAM:

David Ricardo Furlow appeals his convictions and the 106-month sentence imposed

following his guilty plea to distribution of a quantity of cocaine and a quantity of cocaine

base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On

appeal, Furlow’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting that there are no meritorious grounds for appeal but questioning the

validity of Furlow’s guilty plea and appeal waiver, as well as the district court’s application

of the Sentencing Guidelines. * Although notified of his right to file a supplemental pro se

brief, Furlow has not done so. The Government now moves to dismiss the appeal as barred

by the appeal waiver included in Furlow’s plea agreement. For the reasons that follow, we

affirm in part and dismiss in part.

We review the validity of an appeal waiver de novo. United States v. Thornsbury,

670 F.3d 532, 537 (4th Cir. 2012). An appeal waiver “preclude[s] a defendant from

appealing a specific issue if the record establishes that the waiver is valid and the issue

being appealed is within the scope of the waiver.” United States v. Archie, 771 F.3d 217,

221 (4th Cir. 2014). A defendant validly waives his appeal rights if he agreed to the waiver

“knowingly and intelligently.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir.

* Anders counsel also questions whether Furlow has a claim for ineffective assistance of counsel or prosecutorial misconduct. Absent exceptional circumstances not present here, a motion under 28 U.S.C. § 2255 is the appropriate vehicle for asserting an ineffective assistance claim. See United States v. Ojedokun, 16 F.4th 1091, 1115 (4th Cir. 2021). Furthermore, the present record reveals no evidence of prosecutorial misconduct.

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2010). “Generally, if a district court questions a defendant regarding the waiver of

appellate rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the

defendant understood the full significance of the waiver, the waiver is valid.” Thornsbury,

670 F.3d at 537.

Our review of the record confirms that Furlow knowingly and intelligently executed

the appeal waiver, the terms of which preclude Furlow from appealing whatever sentence

the district court imposed. Thus, we conclude that the waiver bars Furlow’s Guidelines

challenge.

However, Furlow’s appeal waiver does not preclude him from raising a colorable

challenge to the validity of his guilty plea. See United States v. McCoy, 895 F.3d 358, 364

(4th Cir. 2018); United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). Before

accepting a guilty plea, the district court must conduct a colloquy in which it informs the

defendant of, and determines that he understands, the nature of the charges to which he is

pleading guilty, any mandatory minimum penalty, the maximum penalty he faces, 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 court also must ensure that the

defendant’s plea is voluntary and supported by an independent factual basis. Fed. R. Crim.

P. 11(b)(2), (3). Because Furlow did not preserve any error in the plea proceedings, we

review the adequacy of the plea colloquy for plain error. United States v. Vonn, 535 U.S.

55, 58-59 (2002); see Henderson v. United States, 568 U.S. 266, 272 (2013) (describing

standard). Based on our review of the record, we conclude that Furlow’s guilty plea was

knowing, voluntary, and supported by an independent basis in fact.

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In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore grant the Government’s motion to

dismiss in part, dismiss the appeal as to all issues within the waiver’s scope, and affirm the

remainder of the judgment. This court requires that counsel inform Furlow, in writing, of

the right to petition the Supreme Court of the United States for further review. If Furlow

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 Furlow.

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