Opinion
22-4422
02-23-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID RICARDO FURLOW, Defendant-Appellant.
Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
UNPUBLISHED
Submitted: February 21, 2023
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:20-cr-00015-FL-1)
ON BRIEF:
Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North Carolina, for Appellant.
David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before NIEMEYER and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
David Ricardo Furlow appeals his convictions and the 106-month sentence imposed following his guilty plea to distribution of a quantity of cocaine and a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Furlow's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning the validity of Furlow's guilty plea and appeal waiver, as well as the district court's application of the Sentencing Guidelines. Although notified of his right to file a supplemental pro se brief, Furlow has not done so. The Government now moves to dismiss the appeal as barred by the appeal waiver included in Furlow's plea agreement. For the reasons that follow, we affirm in part and dismiss in part.
We review the validity of an appeal waiver de novo. United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012). An appeal waiver "preclude[s] a defendant from appealing a specific issue if the record establishes that the waiver is valid and the issue being appealed is within the scope of the waiver." United States v. Archie, 771 F.3d 217, 221 (4th Cir. 2014). A defendant validly waives his appeal rights if he agreed to the waiver "knowingly and intelligently." United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). "Generally, if a district court questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid." Thornsbury, 670 F.3d at 537.
Our review of the record confirms that Furlow knowingly and intelligently executed the appeal waiver, the terms of which preclude Furlow from appealing whatever sentence the district court imposed. Thus, we conclude that the waiver bars Furlow's Guidelines challenge.
However, Furlow's appeal waiver does not preclude him from raising a colorable challenge to the validity of his guilty plea. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018); United States v. Attar, 38 F.3d 727, 732-33 &n.2 (4th Cir. 1994). Before accepting a guilty plea, the district court must conduct a colloquy in which it informs the defendant of, and determines that he understands, the nature of the charges to which he is pleading guilty, any mandatory minimum penalty, the maximum penalty he faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the defendant's plea is voluntary and supported by an independent factual basis. Fed. R. Crim. P. 11(b)(2), (3). Because Furlow did not preserve any error in the plea proceedings, we review the adequacy of the plea colloquy for plain error. United States v. Vonn, 535 U.S. 55, 58-59 (2002); see Henderson v. United States, 568 U.S. 266, 272 (2013) (describing standard). Based on our review of the record, we conclude that Furlow's guilty plea was knowing, voluntary, and supported by an independent basis in fact.
In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal. We therefore grant the Government's motion to dismiss in part, dismiss the appeal as to all issues within the waiver's scope, and affirm the remainder of the judgment. This court requires that counsel inform Furlow, in writing, of the right to petition the Supreme Court of the United States for further review. If Furlow 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 Furlow.
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
Anders counsel also questions whether Furlow has a claim for ineffective assistance of counsel or prosecutorial misconduct. Absent exceptional circumstances not present here, a motion under 28 U.S.C. § 2255 is the appropriate vehicle for asserting an ineffective assistance claim. See United States v. Ojedokun, 16 F.4th 1091, 1115 (4th Cir. 2021). Furthermore, the present record reveals no evidence of prosecutorial misconduct.