USCA4 Appeal: 22-4219 Doc: 46 Filed: 09/24/2024 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4219

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DIETRICH O’BRIAN SARRATT,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:20-cr-00280-FDW-DSC-1)

Submitted: September 19, 2024 Decided: September 24, 2024

Before GREGORY and AGEE, Circuit Judges, and KEENAN, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

ON BRIEF: James W. Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina, for Appellant. Anthony Joseph Enright, Assistant United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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PER CURIAM:

Dietrich O’Brian Sarratt appeals his convictions and the 300-month sentence

imposed following his guilty plea to conspiracy to distribute and to possess with intent to

distribute 280 grams or more of crack cocaine,

(a)(1), (b)(1)(A), 846;

possession with intent to distribute cocaine and crack cocaine,

(a)(1),

(b)(1)(C); and possession of a firearm in furtherance of drug trafficking,

(c). On appeal, Sarratt’s counsel filed a brief pursuant to Anders v. California,

(1967), stating that there are no meritorious grounds for appeal but questioning

the validity of Sarratt’s guilty plea, the constitutionality of Sarratt’s § 924(c) conviction,

and the procedural and substantive reasonableness of Sarratt’s sentence. Sarratt also filed

two pro se letters challenging the district court’s application of the career offender

enhancement.

After conducting our Anders review, we directed the parties to file supplemental

briefs addressing whether the district court properly applied the career offender

enhancement in light of United States v. Campbell,

(4th Cir. 2022), and U.S.

Sentencing Guidelines Manual § 4A1.2(e) (2018). In response to the order, the

Government moved to dismiss the appeal based on the appeal waiver contained in Sarratt’s

plea agreement. We then placed this appeal in abeyance for United States v. Ashford,

(4th Cir. 2024), which held that the Government does not forfeit its right to rely

on an appeal waiver simply because it declines to respond to an Anders brief.

.

Rather, the Government properly invokes an appeal waiver by raising the waiver in its first

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substantive response to a supplemental briefing order.

. Based on Ashford, we

conclude that the Government timely moved to dismiss Sarratt’s appeal.

Next, we consider the validity of Sarratt’s appeal waiver, an issue we review de

novo. United States v. Thornsbury,

(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,

(4th Cir. 2014). A defendant validly waives his right

to appeal if he agrees to the waiver “knowingly and intelligently.” United States v.

Manigan,

(4th Cir. 2010). “To determine whether a waiver is knowing

and intelligent, we examine the totality of the circumstances, including the experience and

conduct of the accused, as well as the accused’s educational background and familiarity

with the terms of the plea agreement.” Thornsbury,

(internal quotation

marks omitted). “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.”

Our review of the record confirms that Sarratt knowingly and intelligently executed

the appeal waiver, the terms of which preclude him from contesting his “conviction and

sentence in any appeal or postconviction action,” save for exceptions not relevant here.

We therefore conclude that Sarratt has waived his challenges to his sentence and the

constitutionality of his § 924(c) conviction.

However, Sarratt’s appeal waiver does not prevent him from raising a colorable

challenge to the validity of his guilty plea. See United States v. Attar,

, 732-33

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& n.2 (4th Cir. 1994); see also United States v. McCoy,

(4th Cir. 2018)

(holding that defendant’s valid appeal waiver did not preclude claim that plea lacked

sufficient factual basis). 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,

(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 Sarratt did not preserve any error in

the plea proceedings, we review the adequacy of the plea colloquy for plain error. United

States v. Vonn,

(2002); see Henderson v. United States,

(2013) (describing standard).

Anders counsel questions whether the guilty plea was knowingly entered because,

at the sentencing hearing, Sarratt indicated his mistaken belief that he was guaranteed to

receive only the 180-month mandatory minimum sentence. However, at the Rule 11

hearing, Sarratt confirmed his understanding that he faced a maximum penalty of life

imprisonment. A defendant seeking to retract statements made during a Rule 11 colloquy

“bears a heavy burden,” United States v. Bowman,

(4th Cir. 2003),

because, absent “extraordinary circumstances, the truth of sworn statements made during

a Rule 11 colloquy is conclusively established,” United States v. Lemaster,

(4th Cir. 2005). Because we discern no such extraordinary circumstances, we

conclude that Sarratt was aware of his sentencing exposure at the time he entered his plea.

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Anders counsel also questions the adequacy of the factual basis, noting that the

factual basis document that accompanied Sarratt’s plea agreement merely reproduced the

minimal allegations from the superseding indictment. However, “the district court may

conclude that a factual basis exists from anything that appears on the record.” United States

v. Ketchum,

(4th Cir. 2008) (internal quotation marks omitted). And

here, the presentence report (PSR) thoroughly detailed the conduct that led to Sarratt’s drug

and firearm charges, thus providing the district court with sufficient evidence to find a

factual basis for Sarratt’s guilty plea.

Finally, Anders counsel more pointedly questions whether, for the § 924(c) charge,

there was a sufficient nexus between Sarratt’s firearm possession and drug trafficking. In

determining whether a firearm is possessed in furtherance of drug trafficking activity, a

court may consider “the type of drug activity that is being conducted, accessibility of the

firearm, the type of weapon, whether the weapon is stolen, the status of the possession

(legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and

the time and circumstances under which the gun is found.” United States v. Lomax,

(4th Cir. 2002) (internal quotation marks omitted). Here, the PSR indicated

that the firearms and the cocaine were in close proximity; two of the firearms were

handguns, meaning they could easily be concealed on one’s person; and those same two

firearms were stolen. This evidence, we conclude, amply supported the district court’s

factual basis determination.

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

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dismiss the appeal as to all issues falling within the appeal waiver’s scope, and we affirm

Sarratt’s criminal judgment in all other respects. This court requires that counsel inform

Sarratt, in writing, of the right to petition the Supreme Court of the United States for further

review. If Sarratt 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 Sarratt.

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.

DISMISSED IN PART, AFFIRMED IN PART

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