United States v. Richard Fleming

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 27, 2018
• Docket: 18-4156
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4156

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD FLEMING,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:10-cr-00111-8)

Submitted: August 23, 2018 Decided: August 27, 2018

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed in part, affirmed in part by unpublished per curiam opinion.

David Schles, Charleston, West Virginia, for Appellant. Monica D. Coleman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Richard Fleming pled guilty, pursuant to a written plea agreement, to aiding and

abetting the attempted distribution of 100 kilograms or more of marijuana, in violation of

18 U.S.C. § 2 (2012); 21 U.S.C. §§ 841(a)(1), 846 (2012). The district court sentenced

him to 49 months’ imprisonment. On appeal, Fleming’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether Fleming’s

guilty plea was valid and whether Fleming’s sentence is reasonable. Fleming has also

filed a pro se supplemental brief challenging his sentence. The Government has moved

to dismiss Fleming’s appeal based on the appellate waiver in his plea agreement. We

dismiss in part and affirm in part.

Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11

hearing, we conclude that the appeal waiver in Fleming’s plea agreement is valid, as he

entered it knowingly and intelligently. See United States v. Manigan, 592 F.3d 621, 627

(4th Cir. 2010). Fleming waived the right to appeal his conviction and sentence,

including any sentence below or within the advisory Sentencing Guidelines range

corresponding to offense level 26. Accordingly, we grant the Government’s motion to

dismiss in part and dismiss the appeal as to Fleming’s sentence.

Although Fleming agreed to waive the right to appeal his conviction in his plea

agreement, a defendant cannot waive a colorable claim that his plea was not knowing and

voluntary. See, e.g., United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994).

Accordingly, Fleming’s appeal waiver does not foreclose our review of the validity of his

guilty plea. Because Fleming did not move in the district court to withdraw his guilty

2 plea, we review the Rule 11 hearing for plain error. See United States v. Sanya, 774 F.3d

812, 815 (4th Cir. 2014). We conclude that the district court substantially complied with

Rule 11, the court’s minor omissions did not affect Fleming’s substantial rights, and

Fleming entered the plea knowingly and voluntarily.

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

have found no meritorious issues for appeal that are outside the scope of the appeal

waiver or are not waivable by law. Accordingly, we dismiss the appeal in part and affirm

the district court’s judgment as to any issue not precluded by the appeal waiver. This

court requires that counsel inform Fleming, in writing, of the right to petition the

Supreme Court of the United States for further review. If Fleming 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 Fleming.

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