US v. Devino Putney

Filing 920100506

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5221 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEVINO PATERA PUTNEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:08-cr-00038-FL-1) Submitted: March 26, 2010 Decided: May 6, 2010 Before MICHAEL, * MOTZ, and AGEE, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Judge Michael was a member of the original panel but did not participate in this decision. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. 46(d). * Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Devino Patera Putney pled guilty to conspiracy to distribute and possess with intent to distribute fifty or more grams of cocaine base, five or more kilograms of cocaine, and more than 100 kilograms of marijuana, in violation of 21 U.S.C. 841(a)(1), 846 (2006). The district court sentenced Putney to 235 months' imprisonment. Putney appeals, challenging the three-level leadership enhancement Government imposed filed a under motion the to Sentencing dismiss, Guidelines. this court The to asking enforce the appellate waiver in Putney's plea agreement. Putney filed a response, arguing the waiver is invalid for two reasons: first, under the the sentence Eighth constitutes Amendment; cruel and and unusual the punishment waiver was second, involuntary and unknowing because Putney did not know what his Sentencing Guidelines calculation would be at the time of the plea. A defendant may, in a valid plea agreement, waive his appellate rights under 18 U.S.C. 3742 (2006). United We review States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). the validity of an appellate waiver de novo and will enforce the waiver if it is valid and the issue appealed is within the scope thereof. United States v. Blick, 408 F.3d 162, 171 (4th Cir. 3 2005). An appeal waiver is valid if the defendant knowingly and Id. at 169. waiver "the is knowing of of and the the intelligently agreed to the waiver. To intelligent, circumstances, determine the court whether looks the the to totality conduct including experience and accused, as well as the accused's educational background and familiarity with the terms of the plea agreement." United States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks omitted). Generally, if the district court fully questions the defendant about the waiver during the Rule 11 colloquy, the waiver is valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We believe Putney's appeal waiver forecloses his claim that his sentence constitutes cruel and unusual punishment. Insofar as Putney now challenges the voluntariness of his plea, we also find his argument unavailing. The magistrate judge conducted a thorough plea colloquy, including a discussion of the appellate to waiver. waiver, At and sentencing, Putney did the not district court the referred the challenge voluntariness of his plea. Therefore, we find Putney's plea was voluntarily and intelligently made. For the above reasons, we grant the Government's Insofar as motion and dismiss Putney's appeal of his sentence. Putney challenges his conviction, we affirm. 4 We dispense with oral argument because in the the facts and legal before contentions the court are and adequately presented materials argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 5

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