US v. Richard Powell

Filing 920091023

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4080 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD EUGENE BOWLING POWELL, Defendant - Appellant. No. 09-4103 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRACEY SCOTT RICH, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00057-RBH-1; 4:08-cr-00057-RBH-2) Submitted: October 8, 2009 Decided: October 23, 2009 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina; Beattie Balentine Ashmore, Greenville, South Carolina, for Appellants. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Pursuant Powell and Tracey to plea agreements, Rich pled Richard to Eugene one Bowling of Scott guilty count interference with commerce by robbery, in violation of 18 U.S.C. 1951(a), 2 (2006), and one count of using, carrying, and possessing firearms during, in relation to, and in furtherance of, a crime of violence, in violation of 18 U.S.C. 924(c), 2 (2006). The plea agreements included stipulated sentences of years for Powell and fifteen years for Rich, in twenty-five accordance with Fed. R. Crim. P. 11(c)(1)(C), in exchange for the Government dismissing the remaining counts in the indictment. The district court accepted the plea agreements and, therefore, was bound to sentence Powell to 300 months and Rich to 180 months, which it did. On accordance appeal, counsel v. have filed 386 a joint U.S. brief in with Anders California, 738 (1967), stating that, in their view, there are no meritorious issues for appeal. Counsel question, however, whether the district court fully complied with Rule 11 of the Federal Rules of Criminal Procedure in accepting the guilty pleas and whether the sentences are reasonable. Powell and Rich were advised of their right to file a pro se supplemental brief, but they have not filed a brief. The Government declined to file a brief. 3 Because neither Powell nor Rich moved in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. * 277 F.3d 517, 525 (4th Cir. 2002). appellants "must show: United States v. Martinez, To establish plain error, (1) an error was made; (2) the error is United 2009) plain; and (3) the error affects substantial rights." States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. (reviewing unpreserved Rule 11 error). the error lies within our "The decision to correct and we exercise that discretion, discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." 343 (internal quotation marks and citations omitted). Counsel have not identified any error in the Rule 11 hearings, district knowing basis. (4th and court and our review of that the record reveals guilty none. pleas The were Id. at ensured appellants' by a voluntary and supported sufficient factual See United States v. DeFusco, 949 F.2d 114, 116, 119-20 1991). We therefore affirm Powell's and Rich's Cir. convictions. Next, Powell and Rich challenge the reasonableness of their sentences. jurisdiction * We conclude, however, that we do not have this portion of the appeals. The federal over Powell filed a pro se motion to withdraw his plea, but withdrew the motion before sentencing. 4 statute governing (2006), appellate limits review the of a sentence, under 18 U.S.C. a 3742(c) circumstances which defendant may appeal a sentence to which he stipulated in a Rule 11(c)(1)(C) plea agreement to claims that "his sentence was imposed in violation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines[.]" United States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998); United States v. Littlefield, 105 F.3d 527, 527-28 (9th Cir. 1997). Here, violation of appellants' law. sentences 216-month were not imposed and in Powell's sentence Rich's ninety-six-month sentence on the robbery count were well within the 240-month The count statutory maximum. See 18 U.S.C. 1951(a) on the the (2006). firearm eighty-four-month were mandated by consecutive statute, and sentences were within maximum sentence of life imprisonment. See United States v. Nor are the of the Cristobal, 293 F.3d 134, 146-47 (4th Cir. 2002). sentences guidelines. a result of an incorrect application A sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is contractual and not based upon the guidelines. See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005) (stating that "[a] sentence imposed under a Rule 11(c)(1)(C) plea arises directly from the agreement itself, not from the Guidelines"); Littlefield, 105 F.3d at 528. 5 Because 3742(c) bars review of sentences imposed pursuant to a Rule 11(c)(1)(C) plea agreement and none of the exceptions applies, we dismiss the appeals of the sentences. In accordance with Anders, we have reviewed the entire records in these cases and have found no meritorious issues for appeal. appeals We therefore affirm the convictions and dismiss the of the sentences. This court requires that counsel inform their clients, in writing, of the right to petition the Supreme Court of the United States for further review. If a client 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 the client. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 6

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