US v. Derrick Aylor

Filing 920100416

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4569 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DERRICK SCOTT AYLOR, Defendant Appellant. No. 09-4577 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DERRICK SCOTT AYLOR, Defendant Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:09-cr-00021-PJM-1; 8:08-cr-00489-PJM-1) Submitted: April 1, 2010 Decided: April 16, 2010 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland, for Appellant. Jonathan C. Su, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Derrick Scott Aylor pled guilty, pursuant to a written plea agreement, to two counts of bank robbery, in violation of 18 U.S.C. 2113(a), (f) (2006). The district court calculated Aylor's total offense level under the U.S. Sentencing Guidelines Manual (2008) at 21 and his criminal history in Category IV, resulting in a Guidelines imprisonment range of 57 to 71 months on each count. imprisonment. guilty breached plea the The district court sentenced Aylor to 71 months' Aylor and plea to appeals and asserts on appeal the that his sentence are by in void because to Government him an agreement failing a afford opportunity interview. participate presentence debriefing The Government moves to dismiss the appeal, arguing that Aylor's knowing and voluntary waiver of his right to appeal his sentence bars this appeal. part. A waiver is defendant knowing 423 F.3d and may waive the right United Cir. to appeal v. if that We dismiss in part and affirm in intelligent. 430 (4th States To Amaya- Portillo, 427, 2005). determine whether a waiver is knowing and intelligent, this court examines "the totality of the circumstances, including the experience and conduct of the accused, as well as the accused's educational background agreement." and familiarity States with v. 3 the terms 278 of F.3d the 389, plea 400 United General, (4th Cir. 2002) (internal quotation marks omitted). Generally, if the district court fully questions a defendant at the Fed. R. Crim. P. 11 proceeding regarding the waiver of his right to appeal, the waiver is both valid and enforceable. See United However, States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). an appeal waiver does not bar the appeal of a sentence imposed in excess of the statutory maximum or a challenge to the validity of a guilty plea. See General, 278 F.3d at 399 n.4. Nor does it bar an appeal raising issues not within the scope of the waiver. See United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of the record leads us to conclude that Aylor knowingly and voluntarily waived the right to appeal his sentence * and that the district court fully questioned Aylor regarding that waiver. Accordingly, the waiver is valid. Aylor claims that the appeal waiver is not enforceable because the Government breached the plea agreement. This court "will not enforce an otherwise valid appeal waiver against a defendant if the [G]overnment breached the plea agreement containing that waiver." United States v. Cohen, 459 F.3d 490, Pursuant to the plea agreement's appeal waiver, Aylor agreed to waive his right to appeal from any sentence within or below the advisory Guidelines range resulting from an adjusted offense level of 21. * 4 495 (4th Cir. 2006). The Government breaches the plea agreement See when a promise it made to induce the plea goes unfulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971). Because Aylor did not raise this issue in the district court, we review it for plain error. 1428 (2009). Although acknowledging that the written plea agreement contains no provision obligating the Government to afford him the opportunity Aylor to participate that in a presentence was debriefing modified by See Puckett v. United States, 129 S. Ct. 1423, interview, claims the agreement statements made during the guilty plea and sentencing hearings. As a general rule, "integrated written plea agreements are not open to oral supplementation." 211, 217 n.4 (4th Cir. United States v. Martin, 25 F.3d However, this court has 1994). recognized exceptions to this rule in particular circumstances where the Government has made affirmative representations in open court. See United States v. Wood, 378 F.3d 342, 349-50 (4th Cir. 2004); Martin, 25 F.3d at 214-17. After review of the record, we conclude that the plea agreement was not orally supplemented to include a provision requiring the Government to afford Aylor the opportunity to participate in a presentence debriefing interview. Accordingly, the Government did not breach the plea agreement by failing to afford Aylor such an interview. 5 Aylor's claim of breach therefore fails, and the plea agreement and its appeal waiver are enforceable against Aylor. sentence falls within the Because Aylor's challenge to his waiver's scope, we grant the Government's motion to dismiss in part. Although Aylor's appeal waiver insulates his sentence from appellate review, the waiver does not preclude our consideration of any challenges to the validity of Aylor's conviction. Consequently, we deny the motion to dismiss in part. Turning, then, to Aylor's conviction, Aylor claims on appeal that his guilty plea is void as a result of the Government's breach of the plea agreement. not barred by the appeal waiver, we While this claim is it is without conclude merit. Accordingly, we affirm Aylor's conviction and dismiss We dispense with oral argument the appeal of his sentence. because the facts and legal contentions are adequately expressed in the materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 6

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