US v. Rachele Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal as to appellant's sentence [998758912-2] Originating case number: 3:11-cr-00047-1. Copies to all parties and the district court/agency. [998827538]. [11-5071]

Appeal: 11-5071

Document: 27

Date Filed: 04/06/2012

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5071

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RACHELE LANEE BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
District Judge. (3:11-cr-00047-1)

Submitted:

March 23, 2012

Decided:

April 6, 2012

Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. R.
Booth Goodwin, II, United States Attorney, William Bryan King,
II, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-5071

Document: 27

Date Filed: 04/06/2012

Page: 2 of 4

PER CURIAM:
Rachele Lanee Brown pled guilty pursuant to a plea
agreement to conspiracy to distribute oxycodone, in violation of
21 U.S.C. § 846 (2006), and was sentenced to fifteen months in
prison.

Counsel

California,
“because

386

of

has

filed

U.S.

738

an

appeal

(1967),

pursuant

in

which

appeal.”

appeal

waiver

appears

to

no

he

provision

there

agreement,

the

be

to

Anders

v.

states
Brown’s

in

that
plea

meritorious

ground

for

Counsel nonetheless identifies as a possible issue for

this court’s review whether Brown’s fifteen-month sentence is
reasonable in light of the purposes of sentencing set forth in
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2011).

Brown has not

filed a pro se supplemental brief despite receiving notice of
her right to do so.

The Government moves to dismiss the appeal

based on the appellate waiver in Brown’s plea agreement.

We

affirm in part and dismiss in part.
A
waiver

is

defendant
knowing

may

and

waive

the

right

intelligent.

See

to

United

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

of

the

voluntarily

and

sentence.

Thus,

record

supports

knowingly
we

the

waived

conclude

that

enforceable.

2

appeal

the

right
waiver

that

States

v.

Our independent

conclusion

her

if

to
is

that

Brown

appeal

her

valid

and

Appeal: 11-5071

Document: 27

However,
appellate claims.

Date Filed: 04/06/2012

even

a

valid

Page: 3 of 4

waiver

does

not

waive

all

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
guilty plea.

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

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

1993).

Moreover,

the

agreement did not waive:

appellate

waiver

in

Brown’s

plea

(1) any challenges she may have if her

sentence were above the Guidelines range associated with the
adjusted offense level determined by the district court, prior
to

consideration

departure
claims;

or

or

of

acceptance

variance;

(3)

conviction.

any

(2)

responsibility

ineffective

claims

Brown’s

of

Brown

sentence

is

may

assistance
have

below

of

or

counsel

pertaining

the

any

to

Guidelines

her

range

associated with her unreduced adjusted offense level and, thus,
she

raises

no

claims

that

fall

outside

the

scope

of

her

appellate waiver.
Accordingly,

we

grant

the

Government's

dismiss the appeal as to Brown’s sentence.
charged

under

Anders

with

reviewing
3

the

motion

to

Although we are

record

for

unwaived

Appeal: 11-5071

Document: 27

Date Filed: 04/06/2012

Page: 4 of 4

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

We therefore dismiss

This court requires that

counsel inform Brown, in writing, of her right to petition the
Supreme Court of the United States for further review.

If Brown

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 Brown.
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.

AFFIRMED IN PART;
DISMISSED IN PART

4