US v. Larry Berry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998658842-2] Originating case number: 5:08-cr-00247-FL-1 Copies to all parties and the district court/agency. [998682889].. [11-4272]

Appeal: 11-4272

Document: 46

Date Filed: 09/21/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4272

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARRY LAVONNE BERRY,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
Chief District Judge. (5:08-cr-00247-FL-1)

Submitted:

September 12, 2011

Decided:

September 21, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant.
Edward D. Gray, Jennifer P. MayParker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 09/21/2011

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PER CURIAM:
Larry Berry pled guilty pursuant to a plea agreement
to armed bank robbery and aiding and abetting, in violation of
18 U.S.C.A. §§ 2, 2113 (West 2000 & Supp. 2011); using a firearm
during a crime of violence and aiding and abetting, in violation
of

18

U.S.C.A.

§§ 2,

924(c)(1)(A)

(West

2000

&

Supp.

2011);

interference with commerce by robbery and aiding and abetting,
in violation of 18 U.S.C. §§ 2, 1951 (2006); and being a felon
in

possession

of

a

firearm,

in

violation

of

18

U.S.C.A.

§§ 922(g)(1), 924 (West 2000 & Supp. 2011), and was sentenced to
302 months in prison.

Counsel has filed an appeal pursuant to

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

the

Anders

brief,

counsel

concedes

that

the

appellate waiver contained in Berry’s plea agreement precludes
his appeal as to his sentence, but nonetheless suggests that the
district
ranges.
a

court

erred

when

it

calculated

Berry’s

Guidelines

Berry has filed a pro se supplemental brief, as well as

supplement

to

his

pro

se

supplemental

brief,

in

which

he

challenges the district court’s decision to sentence him as an
armed career criminal under the Armed Career Criminal Act, 18
U.S.C.A. § 924(e) (West 2000 & Supp. 2011).

The Government

moves to dismiss the appeal as to Berry’s sentence based on the
appellate waiver in Berry’s plea agreement.
and dismiss in part.
2

We affirm in part

Appeal: 11-4272

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A
waiver

is

Date Filed: 09/21/2011

defendant
knowing

may

and

waive

Page: 3 of 4

the

right

intelligent.

to

See

appeal

United

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).
review

of

the

record

voluntarily

and

sentence.

Thus,

supports

knowingly
we

the

waived

conclude

that

right

the

that

States

v.

Our independent

conclusion

his

if

that

to

Berry

appeal

his

is

valid

and

not

waive

all

waiver

enforceable.
However,
appellate claims.

even

a

valid

waiver

does

Specifically, a valid appeal waiver does not

preclude a challenge to a sentence on the ground that it exceeds
the

statutory

maximum

or

is

based

on

a

constitutionally

impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
See United States v. Johnson, 410 F.3d 137, 151

guilty plea.

(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir.

1993).

Moreover,

the

appellate

waiver

in

Berry’s

plea

agreement did not waive: (1) any challenges he may have if his
sentence

were

sentencing;

(2)

above
certain

the

Guidelines

ineffective

range

assistance

calculated

at

of

or

counsel

prosecutorial misconduct claims; or (3) any claims Berry may
have pertaining to his conviction.

3

Berry’s sentence is within

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Date Filed: 09/21/2011

Page: 4 of 4

the Guidelines ranges calculated at sentencing and he raises no
claims that fall outside the scope of his appellate waiver.
Thus, we grant the Government’s motion to dismiss the
appeal as to Berry’s sentence.

Although we are charged under

Anders with reviewing the record for unwaived error, we have
reviewed the record in this case and have found no unwaived and
meritorious issues for appeal.
in part and affirm in part.

We therefore dismiss the appeal
This court requires that counsel

inform Berry, in writing, of his right to petition the Supreme
Court

of

the

United

States

for

further

review.

If

Berry

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this
court

for

leave

to

withdraw

from

representation.

Counsel’s

motion must state that a copy thereof was served on Berry.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

4