US v. Andrew Wayne Landell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999608653-2] Originating case number: 5:13-cr-00040-D-1 Copies to all parties and the district court/agency. [999675449].. [14-4886]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4886

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDREW WAYNE LANDELLS, a/k/a Herbert
Watson, a/k/a John Lee, a/k/a Michael
Sierra,

Hill, a/k/a
Munoz, a/k/a

John
Mark

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:13-cr-00040-D-1)

Submitted:

September 29, 2015

Decided:

October 9, 2015

Before MOTZ, KING, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

Scott L. Wilkinson, SCOTT L. WILKINSON & ASSOCIATES, P.C.,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In a written plea agreement, Andrew Wayne Landells pled
guilty to conspiracy to conduct financial transactions involving
the proceeds of specified unlawful activity, in violation of 18
U.S.C.

§ 1956(a)(1)(B)(i),

(h)

(2012).

imposed a 180-month sentence.
brief

in

(1967),

accordance
stating

meritorious

with

issues

for

in

district

court

Landells’ attorney has filed a

Anders

that,

The

v.

California,

counsel’s

appeal,

but

view,

386

U.S.

738

there

are

no

questioning

whether

the

Government breached the plea agreement, and whether the district
court erred in enhancing Landells’ sentence for possession of a
firearm.

Landells

challenging

the

filed

firearm

a

pro

se

enhancement

supplemental
to

his

brief

sentence.

also
The

Government has moved to dismiss the appeal based on Landells’
waiver

in

sentence.

the

plea

We

agreement

grant

the

of

his

Government’s

right
motion

to
to

appeal

his

dismiss

the

appeal in part, and we affirm the district court’s judgment.
“Plea
party

bargains

should

rest

receive

on

the

contractual

benefit

of

principles,

its

bargain.”

and

each

United

States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (citation and
internal quotations omitted).

“A defendant may waive the right

to appeal his conviction and sentence so long as the waiver is
knowing and voluntary.”

United States v. Davis, 689 F.3d 349,

354 (4th Cir. 2012) (citing United States v. Marin, 961 F.2d
2

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493, 496 (4th Cir. 1992)).

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We review the validity of an appeal

waiver de novo, and we “will enforce the waiver if it is valid
and the issue appealed is within the scope of the waiver.”

Id.

at 354-55 (citing Blick, 408 F.3d at 168).
We have reviewed the plea agreement and the Fed. R. Crim.
P. 11 hearing, and we conclude that Landells’ appeal waiver was
knowing and voluntary.

On appeal, Landells contends that the

Government

plea

breached

the

agreement

at

sentencing

by

not

supporting its recommendation of a three-level enhancement for
Landells’

role

enhancement

in

the

recommended

offense,
in

the

rather

than

presentence

the

report.

four-level
Landells

asserts that this issue falls outside the scope of the waiver.
“A defendant’s waiver of appellate rights cannot foreclose
an argument that the government breached the plea agreement.”
United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009)
(citing United States v. Cohen, 459 F.3d 490, 495 (4th Cir.
2006)).

Moreover,

“we

will

not

enforce

an

otherwise

valid

appeal waiver against a defendant if the government breached the
plea agreement containing that waiver.”

Cohen, 459 F.3d at 495

(citing

also

Blick,

408

F.3d

at

168);

see

United

States

v.

Lewis, 633 F.3d 262, 271 n.8 (4th Cir. 2011) (citing Dawson, 587
F.3d at 644 n.4; Cohen, 459 F.3d at 495).

However, where a

defendant alleges a breach by the Government but “the record in
[the] case does not support [the defendant’s] claim,” we “will
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not invalidate [the defendant’s] appeal waiver based on [the
unsupported] allegations.”
Based

on

our

Cohen, 459 F.3d at 495.

review

of

the

record,

we

conclude

that

Landells’ claim that the Government breached the plea agreement
by

not

supporting

its

recommendation

of

a

three-level

enhancement for Landells’ role in the offense is not supported
by the record.
agreed

to

a

Government

The plea agreement provided that the Government

three-level
to

argue

enhancement;

in

support

it

of

did
the

not

require

position

the

or

“enthusiastically” recommend the three-level enhancement.

to
See

United States v. Benchimol, 471 U.S. 453, 455 (1985) (holding
that

there

is

no

requirement

for

the

Government

to

“enthusiastically” make a certain recommendation or to provide
reasons for a recommendation, absent an agreement to do so).
Moreover, we conclude that Landells’ guilty plea and his appeal
waiver

are

valid

and

enforceable.

Accordingly,

we

affirm

Landells’ conviction.
Landells’ other issue raised on appeal — that the district
court

erred

in

enhancing

his

sentence

for

possession

firearm — falls within the scope of the waiver.
dismiss the appeal as to that claim.
we

have

reviewed

the

record

for

of

a

We therefore

In accordance with Anders,

any

potentially

meritorious

issues that might fall outside the scope of the waiver and have
found none.
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Accordingly, we grant the Government’s motion to dismiss
the appeal in part, and affirm the district court’s judgment.
This court requires that counsel inform Landells, in writing, of
his right to petition the Supreme Court of the United States for
further review.

If Landells 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 Landells.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

5