United States v. Dion Alexander

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 28, 2020
• Docket: 18-4887
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4887

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DION ALEXANDER, a/k/a Will,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:16-cr-00364-RDB-11)

Submitted: February 24, 2020 Decided: February 28, 2020

Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and TRAXLER, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Steven M. Klepper, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. James Thomas Wallner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Dion Alexander appeals his conviction and 108-month sentence imposed following

his guilty plea, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) agreement, to conspiracy to

distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846

(2018). On appeal, Alexander contests the validity of his guilty plea and the propriety of

the district court’s decision to accept the plea agreement. The Government has moved to

dismiss the appeal based on the appeal waiver provision contained in the Rule 11(c)(1)(C)

agreement. For the reasons that follow, we dismiss in part and affirm in part.

We review de novo the validity of an appeal waiver. 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). However, a valid appeal waiver will not preclude a defendant from

raising issues on appeal that “fall within the narrow class of claims that we have allowed a

defendant to raise on direct appeal despite a general waiver of appellate rights,” United

States v. Lemaster, 403 F.3d 216, 220 n.2 (4th Cir. 2005), which includes colorable

challenges to the validity of the defendant’s guilty plea, see United States v. Attar, 38 F.3d

727, 732-33 & n.2 (4th Cir. 1994).

At the Rule 11 hearing, Alexander expressed concern that police misconduct tainted

some of his prior state court convictions, thereby inflating his criminal history and resulting

in an unwarranted career offender designation. The district court assured Alexander that

these prior convictions would not impact his sentence, given that the parties had agreed to

2 a prison term of 108 months, well below the 155-to-188-month Sentencing Guidelines

range produced by the career offender enhancement. On appeal, Alexander contends that

the court misled him because, absent these offenses, the top end of his Guidelines range

might have been lower than 108 months. However, the court was correct that, because

Alexander entered into a Rule 11(c)(1)(C) agreement, he was bound by the parties’ joint

sentencing recommendation, regardless of the validity of the state offenses. Thus, we

conclude that the court properly advised Alexander as to the relevance of the state

convictions at issue, and we therefore affirm Alexander’s conviction.

Next, Alexander asserts that, in the course of satisfying itself that a 108-month

sentence was appropriate, see U.S. Sentencing Guidelines Manual § 6B1.2(c), p.s. (2016),

the court miscalculated the Guidelines range that would have applied had the disputed state

offenses been expunged. We conclude that this argument—essentially arising from a

purported Guidelines error—falls within the scope of Alexander’s valid appeal waiver. *

Accordingly, we deny the Government’s motion to dismiss as to Alexander’s guilty

plea challenge and affirm Alexander’s conviction. As to Alexander’s remaining claims,

we grant the Government’s motion and dismiss the appeal. 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.

DISMISSED IN PART, AFFIRMED IN PART

* We further reject Alexander’s contention that this claim is not subject to waiver because it arose from a Fed. R. Crim. P. 35(a) error or ineffective assistance or counsel that conclusively appears from the face of the record. See United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).