US v. Andre Green
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cr-00944-MBS-10 Copies to all parties and the district court/agency. [998630428].. [10-4401, 10-4655, 10-5085]
Appeal: 10-4401
Document: 70
Date Filed: 07/13/2011
Page: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4401
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE SHAWN GREEN, a/k/a Andre Greene, a/k/a Dre,
Defendant - Appellant.
No. 10-4655
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYRONE BLOCKER,
Defendant - Appellant.
No. 10-5085
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
Appeal: 10-4401
Document: 70
Date Filed: 07/13/2011
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DAVID LYNN WADDELL,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge.
(5:08-cr-00944-MBS-10;
5:08-cr-00944-MBS-22;
5:08-cr-00944-MBS-12)
Submitted:
June 30, 2011
Decided:
July 13, 2011
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
C. Frederic Marcinak, III, SMITH MOORE LEATHERWOOD, LLP,
Greenville, South Carolina; Louis H. Lang, CALLISON, TIGHE &
ROBINSON, LLC, Columbia, South Carolina; Russell W. Mace, III,
THE MACE FIRM, Myrtle Beach, South Carolina, for Appellants.
William N. Nettles, United States Attorney, Jimmie Ewing,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
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PER CURIAM:
Andre
Shawn
Green
pleaded
guilty
to
conspiracy
to
distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846 (2006); David Lynn
Waddell pleaded guilty to conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846;
and
Tyrone
Blocker
pleaded
guilty
to
conspiracy
to
distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846, and possession
with intent to distribute and distribution of cocaine within
1000 feet of a school and aiding and abetting, in violation of
18 U.S.C. § 2 (2006), 21 U.S.C. § 841(a) (2006).
The district
court sentenced Green to 120 months of imprisonment, Waddell to
sixty
months
of
imprisonment,
and
imprisonment, and they now appeal.
Blocker
to
168
months
of
The Government has asserted
the waiver of appellate rights contained in each Appellant’s
plea agreement.
For the reasons that follow, we dismiss the
appeals.
On appeal, Green argues that his guilty plea was not
knowing and voluntary and that the Fair Sentencing Act should be
retroactively
applied
to
him.
Waddell
argues
that
he
was
eligible for the safety valve under the Sentencing Guidelines.
Blocker
argues
that
the
district
court
erred
in
applying
an
enhancement under the Guidelines for possession of a firearm.
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Appeal: 10-4401
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Date Filed: 07/13/2011
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All three Appellants argue that the appeal waivers should not be
enforced.
Pursuant to a plea agreement, a defendant may waive
his
appellate
rights
under
18
U.S.C.
§ 3742
(2006).
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
United
A waiver
will preclude appeal of a specific issue if the waiver is valid
and
the
issue
States v.
question
is
Blick,
of
within
408
whether
the
F.3d
a
scope
162,
defendant
of
168
the
(4th
validly
waiver.
Cir.
waived
United
2005).
his
The
right
to
appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.”
Id. at 169 (citation omitted).
To determine
whether a waiver is knowing and intelligent, we examine “the
totality
of
the
circumstances,
including
the
experience
and
conduct of the accused, as well as the accused’s educational
background
and
2002)
with
the
terms
of
the
plea
United States v. General, 278 F.3d 389, 400 (4th
agreement.”
Cir.
familiarity
(internal
quotation
marks
and
citation
omitted).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy,
the
waiver
is
both
valid
4
and
enforceable.
United
Appeal: 10-4401
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Date Filed: 07/13/2011
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States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
This court will find that a “waiver is not knowingly
or voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision of the
plea
agreement
during
the
Rule
11
colloquy
and
the
record
indicates that the defendant did not otherwise understand the
full significance of the waiver.”
United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992) (citing Wessells, 936 F.2d at
168).
In addition, prior to accepting a guilty plea, a trial
court,
through
colloquy
with
the
defendant,
must
inform
the
defendant of, and determine that he understands, the nature of
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty.
11(b).
Fed. R. Crim. P.
The court also must determine whether there is a factual
basis for the plea.
Id.; United States v. DeFusco, 949 F.2d
114, 120 (4th Cir. 1991).
The purpose of the Rule 11 colloquy
is to ensure that the plea of guilt is entered into knowingly
and voluntarily.
See United States v. Vonn, 535 U.S. 55, 58
(2002).
We have thoroughly reviewed the record and conclude
that
Green’s
guilty
plea
was
entered
into
knowingly
and
voluntarily and that all three Appellants’ plea agreements are
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Date Filed: 07/13/2011
valid and enforceable.
Page: 6 of 6
Moreover, the Appellants knowingly and
intelligently agreed to waive their rights to appeal and the
issues
they
raise
fall
within
the
scope
of
their
respective
appellate waivers.
Accordingly, we dismiss the appeals.
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
We dispense with
legal
before
contentions
the
court
are
and
argument would not aid in the decisional process.
DISMISSED
6
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