US v. Edeogochineme Agbugba

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [999771889-2] in part. Originating case number: 1:14-cr-00493-RDB-1. Copies to all parties and the district court. [999862710]. [15-4704]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4704

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDEOGOCHINEME AGBUGBA,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14-cr-00493-RDB-1)

Submitted:

June 3, 2016

Decided:

June 22, 2016

Before KING, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant. Christopher John Romano, Matthew Corey
Sullivan,
Assistant
United
States
Attorneys,
Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Edeogochineme Agbugba appeals his conviction and 36-month
sentence based upon his Fed. R. Crim. P. 11(c) guilty plea to
conspiracy to distribute heroin.

On appeal, counsel has filed

an Anders v. California, 386 U.S. 738 (1967) brief, finding no
meritorious issues for appeal but questioning whether Agbugba’s
plea was valid and whether his sentence was unreasonable.

The

Government filed a motion to dismiss based upon Agbugba’s appeal
waiver contained in his plea agreement.

In response, Agbugba

asserted that his appellate waiver was not voluntary due to his
status as a non-native English speaker, his lack of education,
and his lack of criminal history.

Although informed of his

right to do so, Agbugba has not filed a pro se supplemental
brief.

We dismiss in part and affirm in part.

A defendant may, in a valid plea agreement, waive the right
to appeal under 18 U.S.C. § 3742 (2012).

United States v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010).

We review the

validity of an appellate waiver de novo and will enforce the
waiver if it is valid and the issue appealed is within the scope
thereof.
2005).

United States v. Blick, 408 F.3d 162, 168 (4th Cir.
An

appeal

waiver

is

valid

only

if

knowingly and intelligently agreed to the waiver.

the

defendant

Id. at 169.

To determine whether a waiver is knowing and intelligent, we
examine

the

background,

experience,
2

and

conduct

of

the

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defendant.

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United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th Cir. 1995); United States v. Davis, 954 F.2d 182, 186 (4th
Cir. 1992).

Generally, if the district court fully questions a

defendant regarding the waiver during the Rule 11 plea colloquy,
the waiver is both valid and enforceable.

United States v.

Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).

Ultimately,

however, the issue is “evaluated by reference to the totality of
the circumstances.”
(4th

Cir.

2002).

United States v. General, 278 F.3d 389, 400
“An

appeal

waiver

is

not

knowingly

or

voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision . . .
during the Rule 11 colloquy and the record indicates that the
defendant did not otherwise understand the full significance of
the waiver.”

United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005) (internal quotation marks omitted).
In his plea agreement, Agbugba waived his right to appeal
both his conviction and sentence.

In response to the court’s

questions, Agbugba testified at his Fed. R. Crim. P. 11 hearing
that he was aware that he was waiving his right to appeal the
agreed-upon

36-month

sentence.

However,

the

court

did

not

question Agbugba regarding his waiver of his right to appeal his
conviction.
We find that the totality of the circumstances weighs in
favor

of

concluding

that

Agbugba
3

only

knowingly

and

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intelligently waived his right to appeal his sentence.

Thus, we

determine that the waiver is only valid and enforceable with
regard to Agbugba’s sentence.

As such, we grant the motion to

dismiss in part and dismiss Agbugba’s challenge to his sentence.
However, we deny the motion to dismiss with regard to Agbugba’s
challenge to his conviction, and we thus examine this issue on
the merits.
In the Anders brief, counsel challenges the voluntariness
of the plea but does not point to any specific defect in the
Rule 11 hearing or any other reason to conclude that the plea
itself (as opposed to the waiver) was involuntary.
plea

must

be

“a

voluntary

and

intelligent

choice

A guilty
among

alternative courses of action open to the defendant.”
Carolina

v.

Alford,

400

U.S.

25,

31

(1970).

To

the

North

meet

the

“intelligent choice” requirement, a defendant must be advised of
all the direct and collateral consequences of his plea, Cuthrell
v. Director, Patuxent Inst., 475 F.2d 1364, 1365-66 (4th Cir.
1973),

including

mandatory

minimum

the

length

sentence

of

which

the
may

maximum
be

sentence

imposed.

United States, 588 F.2d 79, 81 (4th Cir. 1978).

or

Manley

any
v.

Statements made

at a plea hearing that facially demonstrate a plea’s validity
are conclusive absent a compelling reason why they should not
be,

such

as

ineffective

assistance

4

of

counsel.

Via

v.

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Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171
(4th Cir. 1981).
The

Rule

11

colloquy

demonstrates

that

plea was knowingly and voluntarily made.

Agbugba’s

guilty

In accordance with

Anders, we have reviewed the entire record in this case for
unwaived, meritorious issues and have found none.
we

dismiss

conviction.

Agbugba’s

appeal

of

his

sentence

Accordingly,

and

affirm

his

This court requires that counsel inform her client,

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

If the client 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 the client.

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

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