US v. Joseph Briscoe

Filing 920090120

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4195

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOSEPH TERRELL BRISCOE, a/k/a Dreads, Defendant ­ Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:07-cr-00065-JPB-DJJ-1)

Submitted:

December 15, 2008

Decided:

January 20, 2009

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

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Kirk H. Bottner, Charles Town, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Thomas O. Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joseph written plea Terrell agreement Briscoe to pled guilty of pursuant cocaine to a

distribution

base

("crack"), and he was sentenced to 168 months of imprisonment. On appeal, counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there are no meritorious issues: (1) grounds whether for appeal, was but raising the following as a

Briscoe

erroneously

sentenced

career offender because two of his three antecedent felonies were actually misdemeanors under Maryland law; (2) whether

Briscoe's sentence as a career offender violated his (a) Fifth Amendment right against double jeopardy, and (b) his Eighth

Amendment right against cruel and unusual punishment; and (3) whether the district court erred by failing to grant a reduction in Briscoe's sentence, based on Amendment 706 to the Sentencing Guidelines, under U.S. which would have reduced his base § pro offense level

Sentencing Briscoe

Guidelines has not

Manual filed a

2D1.1(c) se

(2007).

Despite brief.

notice,

supplemental

For the reasons that follow, we dismiss in part and

affirm in part. There is a pending motion by the Government to dismiss the appeal. We grant the motion in part, noting that the record

reveals that Briscoe knowingly and voluntarily waived his right to appeal his sentence in his 2 plea agreement and that this

waiver

was

specifically

reviewed

by

the

magistrate

judge

at

Briscoe's plea hearing in compliance with Fed. R. Crim. P. 11. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995); 1992). United States v. Marin, 961 F.2d 493, 496 (4th Cir.

Moreover, we find no exceptions to the waiver rule as

the sentence imposed was not in excess of the statutory maximum, and there is no challenge to the validity of the guilty plea, United States v. General, 278 F.3d 389, 399-400 (4th Cir. 2002); there is no evidence that the sentence was based on a

constitutionally impermissible factor, Marin, 961 F.2d at 496; and there is no indication that the proceedings were conducted in violation of the Sixth Amendment right to counsel. States v. Attar, 38 F.3d 727, 732-33 (4th Cir. United 1994).

Accordingly, we dismiss the appeal of Briscoe's sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. Accordingly, we affirm Briscoe's conviction. This

court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such this a that a petition would leave be be to

counsel then

believes may

that move

petition for

frivolous,

counsel

court

withdraw from representation.

Counsel's motion must state that We dispense with oral

a copy thereof was served on the client. 3

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 IN PART; AFFIRMED IN PART

4