US v. Earl Hill, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999567192-2] Originating case number: 3:14-cr-00114-MHL-1 Copies to all parties and the district court/agency. [999606536].. [15-4048]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4048

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EARL FRANK HILL, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
M. Hannah Lauck, District
Judge. (3:14-cr-00114-MHL-1)

Submitted:

June 18, 2015

Decided:

June 22, 2015

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Scott W. Putney, Scott W. Putney, P.C., Norfolk, Virginia, for
Appellant.
Peter Sinclair Duffey, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Earl Frank Hill, Jr., appeals his conviction and 188-month
sentence

imposed

following

his

guilty

plea

to

conspiracy

to

distribute and possess with intent to distribute 100 grams or
more of heroin, in violation of 21 U.S.C. § 846 (2012).

On

appeal,

v.

counsel

has

filed

a

brief

pursuant

to

Anders

California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but questioning whether the appeal
waiver provision in Hill’s plea agreement was involuntary and
whether the sentencing court failed to adequately account for
Hill’s medical conditions.

Hill has filed a pro se supplemental

brief, which also challenges the validity of his appeal waiver,
as

well

as

the

career

enhance his sentence.

offender

Sentencing

Guideline

to

The Government has moved to dismiss the

appeal pursuant to the appeal waiver provision.
the motion.

used

Hill opposes

For the reasons that follow, we grant the motion

and dismiss the appeal.
We

review

evaluating

the

the

issue

Cir.

“by

of

an

reference

appeal
to

waiver

the

de

totality

novo,
of

the

United States v. Copeland, 707 F.3d 522, 528

circumstances.”
(4th

validity

2013)

(internal

quotation

marks

omitted).

“Plea

bargains rest on contractual principles, and each party should
receive the benefit of its bargain.”
408

F.3d

162,

173

(4th

Cir.

2005)
2

United States v. Blick,
(internal

quotation

marks

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omitted).
waiver

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Where

and

did

the
not

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Government
breach

its

seeks

to

enforce

obligations

the

under

the

appeal
plea

agreement, we will enforce the waiver if the record establishes
that the defendant knowingly and intelligently waived his right
to appeal, and the issues raised on appeal fall within the scope
of the waiver.

United States v. Davis, 689 F.3d 349, 354-55

(4th Cir. 2012).

“Generally, if a district court questions a

defendant regarding the waiver of appellate rights during the
Rule 11 colloquy and the record indicates that the defendant
understood the full significance of the waiver, the waiver is
valid.”

United States v. Thornsbury, 670 F.3d 532, 537 (4th

Cir. 2012).
Hill’s testimony during the district court’s thorough plea
colloquy

establishes

that

Hill

understood

the

appeal

waiver

provision and entered the waiver knowingly, intelligently, and
voluntarily.

Hill’s counsel contends that the plea agreement

was an unconscionable contract of adhesion that rendered the
appeal

waiver

permitted

Hill

unenforceable.
to

avoid

Although

significant

the

plea

additional

agreement
sentencing

exposure and a separate charge, he was under no obligation to
accept

the

agreement

or

its

incorporated

appeal

waiver.

See United States v. Mezzanatto, 513 U.S. 196, 209-10

(1995) (“The plea bargaining process necessarily exerts pressure
on defendants to plead guilty . . . but we have repeatedly held
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that

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the

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government

may

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encourage

a

guilty

plea

by

offering

substantial benefits in return for the plea” (internal quotation
marks omitted)); United States v. Cohen, 459 F.3d 490, 495 (4th
Cir. 2006) (holding that defendant’s unequal bargaining position
did not invalidate appeal waiver).
his

pro

se

supplemental

brief

Moreover, Hill asserts in

that

his

appeal

waiver

was

unintelligent because he was unaware when he entered the plea
agreement that the career offender Guideline used in calculating
his sentence is fundamentally flawed.
sake

of

argument,

Hill’s

claims

Even accepting, for the

regarding

the

enhancement,

“[t]he law ordinarily considers a waiver knowing, intelligent,
and sufficiently aware if the defendant fully understands the
nature of the right and how it would likely apply in general in
the

circumstances—even

though

the

defendant

may

the specific detailed consequences of invoking it.”
670 F.3d at 537 (internal quotation marks omitted).

not

know

Thornsbury,
Thus, we

find nothing in the record to overcome Hill’s sworn testimony
during the plea colloquy or to otherwise establish that his plea
and incorporated appeal waiver were unknowing or involuntary.
Hill’s

appeal

waiver

encompasses

appeals

of

both

his

conviction and any sentence within the 40-year statutory maximum
applicable to his offense.

See 21 U.S.C. § 841(b)(1)(B) (2012).

We have thoroughly reviewed the record in accordance with Anders
and have identified no potentially meritorious issues that fall
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the

broad

outside
motion

to

waiver’s
dismiss

and

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compass.

dismiss

We

Hill’s

therefore
appeal.

grant
This

the

court

requires that counsel inform Hill, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Hill requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Hill.
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.

DISMISSED

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