US v. Jamario Ford

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00040-JFA-1 Copies to all parties and the district court/agency. [999480817].. [14-4482]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4482

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMARIO ARTEZ FORD,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:12-cr-00040-JFA-1)

Submitted:

November 20, 2014

Decided:

November 24, 2014

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

Affirmed by unpublished per curiam opinion.

Howard W. Anderson, III, LAW OFFICE OF HOWARD W. ANDERSON, III,
LLC, Clemson, South Carolina, for Appellant.
Stanley D.
Ragsdale, William Kenneth Witherspoon, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jamario Artez Ford pled guilty, pursuant to a plea
agreement, to brandishing a firearm during the commission of a
crime of violence (Count 5), and discharging a firearm during
the commission of a crime of violence (Count 9).

The district

court imposed mandatory minimum sentences on both counts for a
total of 384 months of imprisonment (84 months for Count 5 and
300

months

consecutively

for

Count

9).

On

appeal,

Ford’s

attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), alleging there are no meritorious issues in
light of Ford’s late notice of appeal and appellate waiver in
his plea agreement.

Ford was notified of his right to file a

pro se supplemental brief, but has not filed a brief.

For the

reasons that follow, we affirm.
We

first

note

that

Ford’s

notice

of

appeal

was

untimely and that the district court did not grant an extension
of time to file or reopen the filing period.

In criminal cases,

appeals periods are not jurisdictional, but are court-prescribed
claim-processing rules that do not affect this court’s subjectmatter jurisdiction.
(4th

Cir.

2010)

See Rice v. Rivera, 617 F.3d 802, 810-11

(stating

that

non-statutory

claim-processing

rules are not jurisdictional); United States v. Urutyan, 564
F.3d 679, 685 (4th Cir. 2009) (“[T]he non-statutory time limits
in

Appellate

Rule

4(b)

do

not
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affect

subject

matter

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jurisdiction.”).
this

court

government;

when

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The appeal period may still be enforced by
the

however,

Rule
in

4(b)

this

time

case,

bar
the

is

invoked

government

by

the

has

not

invoked the Rule 4(b) time bar or moved to dismiss the appeal as
untimely.

Therefore, we conclude that dismissal of the appeal

based on the untimely notice of appeal is not appropriate.
Next, we observe that Ford waived the right to appeal
his conviction and sentence in his plea agreement except for
ineffective

assistance

and

prosecutorial

misconduct.

A

defendant may waive the right to appeal if the waiver is knowing
and intelligent.
(4th

Cir.

2007).

United States v. Poindexter, 492 F.3d 263, 270
However,

the

government

has

not

chosen

to

enforce the waiver, and it is our policy not to raise this issue
sua sponte.

Therefore, we need not consider whether the waiver

is dispositive of this appeal.

See id. at 271 (stating that, if

an Anders brief is filed in a case with an appellate waiver, the
government’s failure to respond “allow[s] this court to perform
the required Anders review”).

Accordingly, we conclude that our

review is not limited by the appeal waiver.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.
and

Our review of Ford’s plea hearing reveals he knowingly

voluntarily

pled

guilty

to

his

offenses

and

that

the

proceeding was conducted in compliance with Fed. R. Crim. P. 11.
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Accordingly, we find no reversible error.

See United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (noting that when a
defendant does not seek to withdraw his guilty plea or otherwise
preserve any allegation of Rule 11 error, this court reviews his
plea colloquy for plain error).
hearing

also

reveals

no

Review of Ford’s sentencing

reversible

error.

As

noted

by

the

district court, it imposed the mandatory minimum sentences for
both offenses.

See 18 U.S.C. §§ 924(c)(1)(A)(ii) (seven year

mandatory sentence for brandishing), (c)(1)(C) (twenty-five year
mandatory sentence for subsequent § 924(c) conviction) (2012).
Thus we find that Ford’s sentence was reasonable.
United

States,

reasonableness

552

U.S.

review

of

38,

51

(2007)

sentences

for

See Gall v.

(discussing
an

appellate

abuse-of-discretion

standard).
We therefore affirm the district court’s judgment and
deny counsel’s motion to withdraw.

This court requires that

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

client

requests

that

a

petition

be

filed,

but

If

counsel

believes that such a petition would be frivolous, then counsel
may renew his motion in this court for leave to withdraw from
representation.
was

served

on

Counsel’s motion must state that a copy thereof
the

client.

Finally,

we

dispense

with

oral

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

AFFIRMED

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