US v. Devino Putney
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
March 26, 2010
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Dismissed in part; affirmed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
enforce the appellate waiver in Putney's plea agreement.
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
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.
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
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
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
contentions the court
argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART
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