US v. Tony Murphy

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in 16-4125 [1000050099-2]. Originating case number: 7:12-cr-00095-D-1 Copies to all parties and the district court/agency. [1000079875].. [16-4124, 16-4125]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4124

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY JEROME MURPHY,
Defendant - Appellant.

No. 16-4125

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY JEROME MURPHY,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, Chief District Judge. (7:12-cr-00095-D-1; 7:15-cr00082-D-1)

Submitted: May 3, 2017

Decided: May 11, 2017

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Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

No. 16-4124 affirmed; No. 16-4125 dismissed by unpublished per curiam opinion.

Brian Michael Aus, Durham, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF
THE UNITED STATES ATTORNEY, 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Unpublished opinions are not binding precedent in this circuit.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:
Tony Jerome Murphy pled guilty, pursuant to a written plea agreement, to
possession with intent to distribute 28 grams or more of cocaine base, in violation of 18
U.S.C. § 841(a)(1), (b)(1)(B) (2012), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2012). The district court imposed a
within-Guidelines sentence of 266 months’ imprisonment. The district court also imposed
a 24-month sentence, to run consecutive to his 266-month prison term, because Murphy
committed the offenses while on supervised release. On appeal, Murphy’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the district court erred when it
sentenced Murphy as a career offender and when it sentenced Murphy to a 24-month term
for violating the terms of his supervised release.
Following our review of the record, we ordered merits briefing, directing the parties
to address whether federal bank robbery and assault on a federal official with a dangerous
weapon constituted crimes of violence for career offender sentencing. The Government
now moves to dismiss the appeal pursuant to the appellate waiver provision in Murphy’s
plea agreement. Murphy opposes the motion. For the reasons that follow, we grant the
Government’s motion and dismiss the appeal in No. 16-4125. We affirm the revocation of
Murphy’s supervised release and corresponding 24-month sentence in No. 16-4124.
We review de novo the issue of whether a defendant validly waived his right to
appeal. United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). Where, as here, the

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Government seeks to enforce the appeal waiver and has not breached the plea agreement,
we will enforce the waiver if it is valid and the issue being appealed falls within the
waiver’s scope. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
A defendant’s waiver of appellate rights is valid if he entered it “knowingly and
intelligently.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). Generally, if
the district court fully questions a defendant regarding the waiver provision during the Fed.
R. Crim. P. 11 colloquy, the waiver is valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005).
In his plea agreement, Murphy waived his right to appeal both his conviction and
sentence, “including any issues that relate to the establishment of the advisory Guideline
range.” Murphy reserved only his right to appeal from a sentence in excess of that
Guideline range and to raise certain claims of ineffective assistance of counsel and
prosecutorial misconduct. The language of the waiver is clear and unambiguous, and our
review of the record shows that the district court questioned Murphy about the waiver and
he understood its full significance. We therefore conclude that Murphy’s waiver is valid
and enforceable.
Murphy argues, however, that the Government waived its right to enforce the
appellate waiver because, in its prior correspondence with this court, the Government did
not state that it intended to file a motion to dismiss the appeal. The Government previously
moved to suspend briefing and place Murphy’s case in abeyance for Beckles v. United
States, No. 15-8544. We granted the Government’s motions. After the Supreme Court

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issued its decision in Beckles v. United States, 137 S. Ct. 886 (2017), the Government
moved to dismiss the appeal pursuant to the appellate waiver in Murphy’s plea agreement.
See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007). We conclude that,
based on this series of events, the Government did not waive its right to move to dismiss
this appeal pursuant to the appellate waiver.
Of course, even a valid appeal waiver does not preclude all appeals. An appeal
waiver does not, for example, bar the appeal of a sentence imposed in excess of the
statutory maximum, United States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002), the
right to appeal a sentence based on a constitutionally impermissible factor such as race,
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), or proceedings conducted in
violation of the Sixth Amendment right to counsel after entry of the guilty plea, United
States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994). Nor does an appeal waiver bar an
appeal as to matters outside the scope of the waiver. Blick, 408 F.3d at 168.
Murphy seeks to appeal his classification as a career offender based on two predicate
offenses. The United States Code allows a criminal defendant to appeal a sentence imposed
“as a result of an incorrect application of the Sentencing Guidelines.”

18 U.S.C.

§ 3742(a)(2) (2012). A defendant can, of course, agree to waive this statutory right to
appeal, as Murphy did in his plea agreement. Thus, his appeal concerning the calculation
of the applicable Guidelines range falls within the scope of his appeal waiver. Copeland,
707 F.3d at 529; see also United States v. Brown, 232 F.3d 399, 404 (4th Cir. 2000)

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(challenge to career offender classification fell within scope of appeal waiver because
defendant waived right to appeal whatever sentence the court imposed).
Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11
hearing, we conclude that Murphy knowingly and voluntarily waived his right to appeal
and that the issue Murphy seeks to raise on appeal falls squarely within the compass of his
waiver of appellate rights. Accordingly, we grant the Government’s motion to dismiss
Murphy’s appeal regarding his conviction and 266-month sentence.
Murphy also seeks to appeal the 24-month sentence that he received following the
revocation of his supervised release. As that issue pertains to a separate conviction and
sentence, the waiver in his plea agreement does not bar him from challenging that judgment
on appeal.

“A district court has broad discretion when imposing a sentence upon

revocation of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir.
2013). We will affirm a revocation sentence that “is within the prescribed statutory range
and is not plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 440 (4th Cir.
2006). We conclude that the district court did not err when it revoked Murphy’s supervised
release for his admitted violations and sentenced him to a 24-month term. We therefore
affirm the district court’s decision regarding Murphy’s supervised release revocation and
sentence.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds remain for appeal. This court requires that counsel inform
Murphy, in writing, of the right to petition the Supreme Court of the United States for

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further review. If Murphy 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
Murphy.
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.
No. 16-4124 AFFIRMED
No. 16-4125 DISMISSED

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