US v. Alfred Bethea

Filing 920100311

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-5060

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFRED PAIGE BETHEA, a/k/a Alfred Paige Lucas, 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-00377-RBH-1)

Submitted:

February 25, 2010

Decided:

March 11, 2010

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence, 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Unpublished opinions are not binding precedent in this circuit.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: Pursuant to a plea agreement, Alfred Paige Bethea pled guilty to possession of a firearm and ammunition after

previously having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (2006). The parties stipulated in the plea See Fed. R. Crim. P.

agreement to a twenty-four-month sentence. 11(c)(1)(C). and,

The district court accepted the plea agreement was bound to sentence Bethea to twenty-four

therefore,

months, which it did. On accordance appeal, Bethea's v. counsel has 386 filed U.S. a brief in

with

Anders

California,

738

(1967),

stating that, in his view, there are no meritorious issues for appeal in light of Bethea's waiver of appellate rights. 1 Counsel

questions, however, whether the district court fully complied with Rule 11 of the Federal Rules of Criminal Procedure a pro in se

accepting

Bethea's

guilty

plea.

Bethea

filed

supplemental brief. 2

We affirm in part and dismiss in part.

Because the Government has not asserted the waiver on appeal, we will conduct our review pursuant to Anders. United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007); see United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Bethea notes in his pro se brief that state charges had been dismissed against him before the federal charges were filed. However, under the concept of dual sovereignty, state prosecution does not bar subsequent federal prosecution of the same person for the same act. United States v. Iaquinta, 674 F.2d 260, 264 & n.9 (4th Cir. 1982). To the extent Bethea also (Continued) 2
2

1

Our conclude that

review the

of

the

record court

on fully

appeal

leads

us

to the

district

complied

with

mandates of Rule 11 in accepting Bethea's plea.

Moreover, the

district court ensured that Bethea's guilty plea was knowing and voluntary and supported by a sufficient factual basis. See

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We therefore affirm Bethea's conviction. With regard to Bethea's sentence, we find that we do not have jurisdiction over this portion of the appeal. 3742(c), Title 18, of the United States Code Section the

limits

circumstances under which a 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, Bethea's sentence was not imposed in violation of law. His twenty-four-month of ten years sentence of is well within provided the by

maximum

sentence

imprisonment

questions whether the district court received all of his recommendation letters at sentencing, it appears that the court received the correspondence.

3

18 U.S.C. § 924(a)(2) (2006).

Nor is his sentence a result of A sentence imposed

an incorrect application of the guidelines.

pursuant to a Rule 11(c)(1)(C) plea agreement is contractual and not based upon the guidelines. United States v. Cieslowski, 410

F.3d 353, 364 (7th Cir. 2005); Littlefield, 105 F.3d at 528. Because § 3742(c) bars review of a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement and none of the exceptions applies, we dismiss the appeal of Bethea's sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the conviction and dismiss the

appeal of the sentence.

This court requires that counsel inform

his client, in writing, of the right to petition the Supreme Court of the United States for further review. If the 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

4