US v. Travis Dials

Filing 920100302

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4109

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TRAVIS SINTELL DIALS, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00379-RBH-1)

Submitted:

February 9, 2010

Decided:

March 2, 2010

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Katherine E. Evatt, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Travis conspiracy distribute to Sintell distribute and Dials and pled to guilty possess in to one count intent 21 of to

with of

cocaine

marijuana,

violation

U.S.C.

§ 841(a)(1) (2006).

In exchange for his plea, the Government one count

dropped the two remaining charges in the indictment:

of possession with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2006).

Pursuant to a stipulation in the plea agreement under Fed. R. Crim. P. 11(c)(1)(C), months the in district court sentenced Dials to

seventy-eight

prison.

On

appeal,

Dials's

counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), issues in for which she asserts that there are the no meritorious court

appeal,

but

questions

whether

district

fully complied with Fed. R. Crim. P. 11 when conducting Dials's guilty plea and whether Dials's sentence was unreasonable or otherwise violated the law. Dials also filed a supplemental For the

brief challenging his sentence on numerous grounds.

reasons that follow, we affirm in part and dismiss in part. The transcript of Dials's plea hearing demonstrates Dials was

that the district court fully complied with Rule 11.

informed of the rights he was giving up by pleading guilty; the 2

nature of the charges against him, what the government would have to prove for each charge at trial, and the penalties for each charge; the relevant fines and applicable forfeitures; and that only the court Dials makes the ultimate his determination of on this

sentencing.

confirmed

understanding

information, noted that his counsel had done everything Dials had asked, and reiterated numerous times that it was his desire to plead guilty. Finally, the district court ensured the

existence of a factual basis for the plea. 11(b).

See Fed. R. Crim. P.

In addition to the sentencing argument presented by counsel in the Anders brief, Dials filed a supplemental pro se brief in which he asserts that his sentence was unreasonable because the district court failed to correctly calculate his sentence under the Guidelines, to provide an explanation for the deviation from the Guidelines range, and to consider the factors in 18 U.S.C. § 3553(a) (2006). jurisdiction to address However, this court is without claimed sentencing errors.

Dials's

Under 18 U.S.C. § 3742(a)(1) and (a)(2) (2006), a defendant may appeal when the sentence "was imposed in violation of law [or] was imposed as a result of If, an as incorrect here, a application defendant of the pled

sentencing

guidelines."

has

guilty pursuant to a plea agreement that includes a specific sentence, he may only pursue an appeal under subsections (a)(3) 3

and (a)(4) only when "the sentence imposed is greater than the sentence set forth in such agreement." (2006). 18 U.S.C. § 3742(c)(1)

Subsections (a)(3) and (a)(4) permit an appeal of a

sentence that is greater than the Guidelines range or a sentence "imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable." (a)(4) (2006). The district court

18 U.S.C. § 3742(a)(3), imposed a sentence of

seventy-eight months, the exact term of imprisonment specified in the plea agreement. greater than the Because the sentence imposed was not sentence, Dials may appeal only

stipulated

pursuant to subsections (a)(1) and (a)(2).

We conclude that the

issues he seeks to raise do not fall within the parameters of § 3742(a)(1) or (a)(2). First, Dials's sentence was not imposed in violation of the law. The presentence report determined that statutorily

he could be sentenced to a maximum term of twenty years; there was no governing statutory minimum. The seventy-eight month

sentence imposed on Dials is well below the statutory maximum and therefore not in violation of the law. Moreover, although

Dials challenges the application of the sentencing guidelines as incorrect, where a sentence is imposed pursuant to a Rule

11(c)(1)(C) plea agreement, the sentence is contractual and not based upon the Guidelines. F.3d 353, 364 (7th Cir. See United States v. Cieslowski, 410 2005). 4 Accordingly, application of

§ 3742 requires dismissal of Dials's appeal of his sentence for lack of jurisdiction. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. part of We therefore affirm Dials's conviction and dismiss that the appeal relating to his sentencing. This court

requires that counsel inform Dials, in writing, of the right to petition review. the Supreme Court of the United States for further

If Dials 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 We dispense with oral argument because the are and adequately argument presented not in aid the the

was served on Dials. facts and legal before

contentions the court

materials

would

decisional process. AFFIRMED IN PART; DISMISSED IN PART

5