895 F.3d 358 (4th Cir. 2018), 17-4117, United States v. McCoy

Docket Nº:17-4117
Citation:895 F.3d 358
Opinion Judge:DIAZ, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alex Lenard MCCOY, Defendant-Appellant.
Attorney:James W. Kilbourne, Jr., DUNGAN, KILBOURNE & STAHL, PA, Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North...
Judge Panel:Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Case Date:July 13, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

Page 358

895 F.3d 358 (4th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Alex Lenard MCCOY, Defendant-Appellant.

No. 17-4117

United States Court of Appeals, Fourth Circuit

July 13, 2018

Argued: March 22, 2018

Page 359

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00273-FDW-DCK-3)

ARGUED:

James W. Kilbourne, Jr., DUNGAN, KILBOURNE & STAHL, PA, Asheville, North Carolina, for Appellant.

Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

ON BRIEF:

R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

OPINION

DIAZ, Circuit Judge:

Page 360

Alex Lenard McCoy pleaded guilty, pursuant to a plea agreement, to a federal drug trafficking conspiracy. In the agreement, McCoy waived his right to appeal his conviction and "whatever sentence is imposed," except on the basis of ineffective assistance of counsel and prosecutorial misconduct. Despite this waiver, McCoy now appeals, arguing that (1) a factual basis doesn’t support his guilty plea, and (2) that the district court erred in its application of the Sentencing Guidelines to his case.

The government has moved to dismiss the appeal based on the waiver. McCoy responds that a challenge to the factual basis of a plea falls outside the scope of a valid waiver. We agree, but find that a factual basis supports his plea. And because McCoy’s waiver is otherwise knowing and voluntary, it forecloses his remaining claims on appeal. We therefore grant the Government’s motion to dismiss the appeal in part and affirm McCoy’s conviction and sentence.

I.

In November 2015, a federal grand jury indicted Alex McCoy on four related drug charges. Count one charged McCoy with participating in a crack-cocaine trafficking conspiracy centered around Gaston County, North Carolina in violation of 21 U.S.C. § § 841(a)(1) and 846, while the remaining three counts charged McCoy with distribution and possession of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

McCoy eventually agreed to plead guilty to count one in exchange for the government dismissing the three other charges and withdrawing information about a prior felony drug conviction. The plea agreement included a joint recommendation regarding the quantity of crack cocaine or "cocaine base" involved in the conspiracy along with an appellate waiver. Specifically, McCoy agreed to waive "all such rights to contest the conviction except for: (1) claims of ineffective assistance of counsel or (2) prosecutorial misconduct" or "otherwise to appeal whatever sentence is imposed with the two exceptions set forth above." J.A. 87.

The parties further stipulated to a factual basis signed by McCoy’s lawyer and adopted by McCoy during his Rule 11 plea colloquy. This factual basis stated that "McCoy was a member of a conspiracy with others, in Gaston County ... to distribute and to possess with intent to distribute cocaine base, commonly known as ‘crack cocaine.’ " J.A. 38. The document also provided that "[t]he amount of cocaine base (‘crack cocaine’) that was known to or reasonably foreseeable by the Defendant was at least eight hundred and forty (840) grams but less than two thousand eight hundred (2,800) grams." J.A. 40.

McCoy’s Rule 11 hearing was held before a magistrate judge on June 1, 2016. That morning, the government realized the plea agreement referred to cocaine, rather

Page 361

than cocaine base, when discussing the quantity of drugs involved in the conspiracy. After discussing the error with defense counsel, the government proposed "a pen and ink change to page 2 of the plea agreement" by adding the word base after cocaine to clarify that "what we’re talking about is cocaine base" not "powder cocaine." J.A. 48. Defense counsel voiced no objection to the change and the court permitted the revision. The government and McCoy’s lawyer initialed next to the change. McCoy did not.

The government then proceeded to summarize (incorrectly) the terms of the plea agreement, stating the minimum quantity of cocaine base (or crack cocaine) involved in the conspiracy was "at least 240 grams" when the minimum amount set forth in the plea agreement was in fact 840 grams. J.A. 49. After the government’s summary, the magistrate judge engaged in the following colloquy with McCoy regarding the plea agreement, including the appellate waiver: THE COURT: ... Do you understand those to be the terms of your plea agreement, and do you agree with those terms?

THE DEFENDANT: Yes, sir.

THE COURT: Has the right to appeal your conviction and sentence been expressly waived in this plea agreement?

...

To continue reading

FREE SIGN UP