No. 12-4245
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Terrence W. Boyle,
District Judge. (4:11-cr-00057-BO-2)
Submitted:
Decided:
PER CURIAM:
Dayton Jarrod Davis appeals his conviction and 188month sentence, following his guilty plea, pursuant to a plea
agreement, to conspiracy to distribute and possess with intent
to distribute twenty-eight grams or more of cocaine base, in
violation of 21 U.S.C. 846 (2006).
that
there
are
no
meritorious
issues
for
appeal
but
188
months
imprisonment
based
on
allegedly
incredible
to
briefing
provide
regarding
an
adequate
whether
the
individualized
district
court
assessment
as
required by United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009), and if so, whether such error was harmless.
Davis filed
not
harmless,
procedurally
and
that
unreasonable.
his
The
sentence
Government
has
therefore
now
moved
was
to
appellate
rights
in
his
plea
agreement.
We
grant
the
Governments
motion
in
part,
dismiss
in
part,
and
affirm
in
part.
A defendant may waive the right to appeal under 18
U.S.C. 3742 (2006).
(4th Cir. 1990).
(internal
quotation
marks
and
citation
omitted).
We
Cir. 1992).
To
intelligent,
including
determine
we
the
background,
and
whether
examine
the
defendants
familiarity
waiver
totality
of
experience,
with
the
was
the
knowing
circumstances,
conduct,
plea
and
educational
agreements
terms.
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
Generally, if a court fully questions a defendant regarding the
appellate waiver during the Rule 11 colloquy, the waiver is both
valid and enforceable.
Id.
sentence.
sentence
in
excess
of
the
applicable
Guidelines
range.
district
court
imposed
within-Guidelines
sentence,
the
of
the
appellate
waiver.
We
therefore
grant
the
of
Davis
conviction
pursuant
to
Anders.
Prior
to
court
must
ensure
that
the
defendants
(3).
Because
Davis
did
not
Additionally, the
move
plea
was
Fed. R. Crim. P.
to
withdraw
his
11
colloquy,
we
review
the
colloquy
for
plain
error.
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).
4
we
meritorious
have
reviewed
issues
for
the
appeal.
record
We
In accordance with
and
have
therefore
found
affirm
no
Davis
conviction.
This
writing,
of
court
his
requires
right
to
that
petition
counsel
the
inform
Supreme
Davis,
Court
of
in
the