USCA4 Appeal: 23-4322 Doc: 34 Filed: 11/13/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4322

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRANDON MCMILLAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Richard E. Myers, II, Chief District Judge. (7:21-cr-00135-M-1)

Submitted: October 22, 2024 Decided: November 13, 2024

Before WILKINSON, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville, South Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4322 Doc: 34 Filed: 11/13/2024 Pg: 2 of 4

PER CURIAM:

Brandon McMillan pled guilty, pursuant to a written plea agreement, to possession

of a firearm and ammunition by a felon, in violation of

(g)(1), 924(a)(2)

(2018). 1 The district court sentenced him to 120 months’ imprisonment. On appeal,

McMillan’s attorney has filed a brief pursuant to Anders v. California,

(1967),

stating that there are no meritorious grounds for appeal but asking this court to review the

validity of McMillan’s guilty plea, whether the Government breached the plea agreement

by not arguing in favor of a sentencing stipulation in the plea agreement, and whether the

district court erred by declining to adopt the stipulation. McMillan was informed of his

right to file a pro se supplemental brief, but he has not done so. The Government has

moved to dismiss the appeal pursuant to the appellate waiver in McMillan’s plea

agreement. We affirm in part and dismiss in part.

“We review an appellate waiver de novo to determine whether the waiver is

enforceable” and “will enforce the waiver if it is valid and if the issue being appealed falls

within the scope of the waiver.” United States v. Boutcher,

(4th Cir. 2021) (internal quotation marks omitted). Our review of the plea hearing leads

us to conclude that McMillan knowingly and intelligently waived his right to appeal his

conviction and sentence, with limited exceptions not applicable here. We therefore

1 Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) convictions. See Bipartisan Safer Communities Act,

(c),

, 1329 (2022). The new penalty provision does not apply in this case, however, because McMillan committed his offense before the June 25, 2022, amendment to the statute. 2 USCA4 Appeal: 23-4322 Doc: 34 Filed: 11/13/2024 Pg: 3 of 4

conclude that the waiver is valid and enforceable as to all issues that fall within its scope,

including the sentencing issue counsel raises in the Anders brief. In accordance with our

review of the record pursuant to Anders, we further conclude that McMillan’s guilty plea

was knowing, voluntary, and supported by a sufficient factual basis. See United States v.

Taylor-Sanders,

(4th Cir. 2023) (“[T]he existence of [an appeal] waiver

does not bar our review of the validity of the guilty plea.”).

In the plea agreement, the parties stipulated that the sentence imposed would run

concurrently with any sentence imposed by the state court for the underlying conduct. The

plea agreement also stated that this stipulation was not binding on the court. At sentencing,

the district court announced that the advisory Sentencing Guidelines range would have

been 360 months to life imprisonment, but, due to the statutory maximum, the range

was 120 months. McMillan stated that he was not requesting a sentence below the 120-

month statutory maximum, but asked the court to consider allowing the sentence to run

concurrently with the state sentence. The Government merely stated that a 120-month

sentence was appropriate and did not mention the stipulation or argue in favor of a

concurrent sentence.

To the extent that counsel asserts that the Government breached the plea agreement

by failing to argue in favor of a concurrent sentence, we find no plain error. 2 See Dawson,

587 F.3d at 645 (reviewing for plain error claim of breach of plea agreement where

2 McMillan’s appeal waiver does not preclude our consideration of this claim because “[a] defendant’s waiver of appellate rights cannot foreclose an argument that the government breached its obligations under the plea agreement.” United States v. Dawson,

, 644 n.4 (4th Cir. 2009). 3 USCA4 Appeal: 23-4322 Doc: 34 Filed: 11/13/2024 Pg: 4 of 4

defendant did not raise claim in district court). The terms of the plea agreement did not

require the Government to make a sentencing recommendation or to affirmatively argue in

favor of allowing the sentence to run concurrently with the state sentence; thus, we find no

breach of the plea agreement. See United States v. Lewis,

(4th Cir. 2011)

(“The government is only bound, however, by the promises that were actually made in

inducing a guilty plea.”); see also United States v. Benchimol,

(1985)

(holding that government is not required to explain reasons for its sentencing

recommendation unless it agreed to do so in the plea agreement).

In accordance with Anders, we have reviewed the entire record in this case and have

found no potentially meritorious grounds for appeal that are outside the scope of the

appellate waiver. We therefore grant in part the Government’s motion to dismiss and

dismiss the appeal as to all issues covered by the appellate waiver. We also deny in part

the motion to dismiss and otherwise affirm. This court requires that counsel inform

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

further review. If McMillan 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

McMillan. 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

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