US v. Kunta Redd

Filing 920100624

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4633

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. KUNTA KENTA REDD, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:08-cr-00043-D-1)

Submitted:

June 8, 2010

Decided:

June 24, 2010

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kunta Kenta Redd pled guilty, pursuant to a written plea agreement, to one count of conspiracy to distribute and to possess with the intent to distribute cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2006). The district court calculated Redd's advisory imprisonment range under the U.S. Sentencing Guidelines Manual (2007) at 262 to 327 months and sentenced Redd to 324 months' imprisonment. On

appeal, Redd's counsel has filed an Anders * brief stating that there are no non-frivolous issues for appeal, but questioning whether the district court abused its discretion in imposing sentence. Redd has filed a pro se supplemental brief in which The Government has moved to

he, too, challenges his sentence.

dismiss the appeal of Redd's sentence based on Redd's waiver of appellate rights. A We dismiss in part and affirm in part. may waive the right to appeal if that

defendant

waiver is knowing and intelligent. 492 F.3d 263, 270 (4th Cir. 2007).

United States v. Poindexter, Generally, if the district

court fully questions a defendant regarding the waiver of his right to appeal during the plea colloquy performed in accordance with Fed. R. Crim. P. 11, the waiver is both valid and

enforceable.
*

See United States v. Johnson, 410 F.3d 137, 151

Anders v. California, 386 U.S. 738 (1967).

2

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of whether a defendant validly

waived his right to appeal is a question of law that this court reviews de novo. (4th Cir. 2005). Our review of the record leads us to conclude that Redd knowingly and voluntarily waived the right to appeal his sentence. We therefore grant the Government's motion to dismiss Although appellate of Redd's United States v. Blick, 408 F.3d 162, 168

in part and dismiss Redd's appeal of his sentence. Redd's review, appeal the waiver insulates not his sentence our from

waiver

does

preclude

review

conviction pursuant to Anders. Redd guilty plea, moved and, by in so the district court to the withdraw issue of his the

moving,

preserved

adequacy of the Fed. R. Crim. P. 11 hearing.

See United States Our review of

v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008).

the transcript of the Rule 11 hearing leads us to conclude that the district court did not commit reversible error in accepting Redd's ensure guilty that plea. Although the district court in failed to a

Redd

understood

its

obligation

determining

sentence to consider possible departures under the Sentencing Guidelines, conclude as required this by Fed. did R. Crim. affect P. 11(b)(1)(M), we

that

error

not

Redd's

substantial See Fed. R.

rights and therefore disregard it as harmless. 3

Crim. P. 11(h); Hairston, 522 F.3d at 341.

The court otherwise

complied with Rule 11 in accepting Redd's guilty plea, ensuring that the plea was supported by an independent factual basis and that Redd entered the plea knowingly and voluntarily with an understanding of the consequences. See United States v.

DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). With respect to the district court's denial of Redd's motion to withdraw his guilty plea, we review that decision for abuse of discretion. (4th Cir. 2007). United States v. Dyess, 478 F.3d 224, 237

In determining whether a defendant has met his

burden, six factors must be considered: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the [G]overnment; and (6) whether withdrawal will inconvenience the court and waste judicial resources. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). An appropriately a strong United conducted Rule that 11 proceeding, plea is however, final 1389, and 1394

"raise[s] binding."

presumption States v.

the

Lambey,

974

F.2d

(4th Cir. 1992).

Here, the Rule 11 proceeding was appropriately

conducted, and Redd's guilty plea was knowingly and voluntarily made. We conclude that Redd did not credibly assert his legal

4

innocence and that the motion to withdraw, filed nearly a year after Redd entered his guilty plea, was untimely. It is

undisputed that Redd had the close assistance of trial counsel. Finally, allowing Redd to withdraw his guilty plea would have prejudiced the Government and inconvenienced the district court. We are therefore satisfied that the district court did not abuse its discretion in denying Redd's motion to withdraw his guilty plea. Dyess, 478 F.3d at 237. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues remaining for appeal. We therefore affirm Redd's conviction. This court

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

If Redd 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 Redd. facts and legal before

contentions the court

materials

would

decisional process. DISMISSED IN PART; AFFIRMED IN PART

5