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    United States v. Washington, 4th Cir. (2007)

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    1) Donald Washington pled guilty to possession with intent to distribute cocaine base. He entered into a plea agreement that waived his right to appeal. 2) At sentencing, the district court determined Washington was a career offender and sentenced him to 156 months in prison, which was within the statutory maximum. 3) On appeal, Washington challenged his career offender status and sentence length. However, the appellate court dismissed the appeal, enforcing the waiver of appellate rights in Washington's plea agreement.

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    United States v. Washington, 4th Cir. (2007)

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    1) Donald Washington pled guilty to possession with intent to distribute cocaine base. He entered into a plea agreement that waived his right to appeal. 2) At sentencing, the district court determined Washington was a career offender and sentenced him to 156 months in prison, which was within the statutory maximum. 3) On appeal, Washington challenged his career offender status and sentence length. However, the appellate court dismissed the appeal, enforcing the waiver of appellate rights in Washington's plea agreement.

    Original Description:

    Filed: 2007-11-15 Precedential Status: Non-Precedential Docket: 07-4048

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    1) Donald Washington pled guilty to possession with intent to distribute cocaine base. He entered into a plea agreement that waived his right to appeal. 2) At sentencing, the district court determined Washington was a career offender and sentenced him to 156 months in prison, which was within the statutory maximum. 3) On appeal, Washington challenged his career offender status and sentence length. However, the appellate court dismissed the appeal, enforcing the waiver of appellate rights in Washington's plea agreement.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    18 views4 pages

    United States v. Washington, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    1) Donald Washington pled guilty to possession with intent to distribute cocaine base. He entered into a plea agreement that waived his right to appeal. 2) At sentencing, the district court determined Washington was a career offender and sentenced him to 156 months in prison, which was within the statutory maximum. 3) On appeal, Washington challenged his career offender status and sentence length. However, the appellate court dismissed the appeal, enforcing the waiver of appellate rights in Washington's plea agreement.

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-4048

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    DONALD TERRELL WASHINGTON,
    Defendant - Appellant.

    Appeal from the United States District Court for the Northern
    District of West Virginia, at Martinsburg. W. Craig Broadwater,
    District Judge. (3:06-cr-00022-WCB)

    Submitted:

    October 29, 2007

    Decided:

    November 15, 2007

    Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior


    Circuit Judge.

    Dismissed by unpublished per curiam opinion.

    Robert E. Barrat, Martinsburg, West Virginia, for Appellant.


    Sharon L. Potter, United States Attorney, Thomas O. Mucklow,
    Assistant United States Attorney, Martinsburg, West Virginia, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    On May 16, 2006, Donald T. Washington was charged with
    possession with intent to distribute approximately 1.33 grams of
    cocaine

    base,

    in

    violation

    of

    21

    U.S.C.

    841(a)(1)

    (2000).

    Washington entered a plea agreement with the United States, and on


    August 21, 2006, Washington pled guilty to possession with intent
    to distribute cocaine base.

    Washingtons plea agreement contained

    a waiver of appellate rights.


    Prior to Washingtons sentencing, the probation office
    compiled a presentence report and calculated an advisory guidelines
    range of 151-188 months of imprisonment.

    At sentencing, the

    district court imposed a sentence of 156 months imprisonment.


    On appeal, Washington has filed a brief pursuant to
    Anders v. California, 386 U.S. 738 (1967), in which he questions
    whether he should have been determined to be a career offender and
    whether his sentence is too long.
    se supplemental brief.
    four separate errors:

    Washington has also filed a pro

    In his pro se brief, Washington alleges


    (1) use of his prior convictions to enhance

    the applicable statutory range violated his Sixth Amendment right


    to a jury trial; (2) he was deprived of competent counsel; (3) his
    career

    offender

    status

    overrepresents

    the

    seriousness

    of

    his

    criminal history and likelihood of recidivism; and (4) the factors


    in

    18

    U.S.C.

    3553(a)

    (2000)

    support

    significantly

    lower

    sentence than that recommended by his advisory guidelines range.

    - 2 -

    In response, the Government has filed a brief invoking the waiver


    of appellate rights in Washingtons plea agreement.
    This Court reviews the validity of a waiver de novo,
    United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
    uphold a waiver of appellate rights if the waiver is valid and the
    issue being appealed is covered by the waiver.
    Blick, 408 F.3d 162, 168 (4th Cir. 2005).

    United States v.

    A waiver is valid if the

    defendants agreement to the waiver was knowing and voluntary.


    United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United
    States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991).

    Generally,

    if a district court fully questions a defendant regarding his


    waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy,
    the waiver is valid.

    Wessells, 936 F.2d at 167-68.

    Here, according to the terms of his plea agreement,


    Washington waived the right to appeal any sentence within the
    maximum provided in the statute of conviction or the manner in
    which

    that

    sentence

    was

    determined

    on

    any

    ground

    whatever,

    including those grounds set forth in Title 18, United States Code,
    Section 3742.

    Washingtons sentence of 156 months is within the

    statutory maximum of twenty years. 21 U.S.C.A. 841(c) (West 2000


    and Supp. 2007).
    of

    his

    plea

    Notably, Washington does not attack the validity

    agreement

    or

    waiver

    of

    appellate

    rights.

    At

    Washingtons Rule 11 hearing, the district court conducted a


    thorough colloquy with Washington and specifically questioned him

    - 3 -

    about whether he understood he was waiving his right to appeal.


    The district court properly concluded that Washingtons plea was
    freely and voluntarily made and accepted Washingtons plea.

    As

    Washington knowingly and voluntarily waived his right to appeal and


    as his sentencing claims fall squarely within the terms of his
    appellate waiver, we dismiss Washingtons appeal.*
    In accordance with Anders, we have reviewed the record in
    this case and have found no meritorious issues for appeal.
    therefore dismiss Washingtons appeal.

    We

    This court requires that

    counsel inform Washington, in writing, of the right to petition the


    Supreme

    Court

    of

    the

    United

    States

    for

    further

    review.

    If

    Washington 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.

    Counsels

    motion must state that a copy thereof was served on Washington.


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

    DISMISSED

    To the extent that Washington claims he received ineffective


    assistance of counsel, his claim is not cognizable on direct
    appeal. See United States v. Gastiaburo, 16 F.3 582, 590 (4th Cir.
    1994).
    Rather, it must be pursued in an appropriate postconviction proceeding brought pursuant to 28 U.S.C. 2255 (2000).
    Accordingly, Washingtons ineffective assistance of counsel claim
    must likewise be dismissed.
    - 4 -

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