USCA4 Appeal: 23-4277 Doc: 28 Filed: 03/11/2024 Pg: 1 of 7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4277

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALBERT VINES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:17-cr-00397-D-1)

Submitted: February 26, 2024 Decided: March 11, 2024

Before WYNN and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

ON BRIEF: Helen Celeste Smith, Apex, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Albert Vines appeals from his convictions and 326-month sentence imposed

pursuant to his guilty plea to possession of a firearm during a crime of violence (Hobbs

Act robbery), in violation of

(c), and possession with the intent to distribute

controlled substances, in violation of

(a)(1). On appeal, Vines’ attorney

has filed a brief pursuant to Anders v. California,

(1967), questioning

(1) whether the Rule 11 hearing was sufficient, (2) whether Hobbs Act robbery is an

appropriate predicate offense for Vines’ § 924(c) conviction, (3) whether the 300-month

mandatory minimum on Vines’ firearm conviction was unconstitutional, and (4) whether

the district court appropriately considered Vines’ mitigating arguments and provided a

sufficient explanation for his sentence. Vines was advised of his right to file a pro se

supplemental brief, but he has not filed one. The Government elected not to file a brief but

has moved to dismiss the appeal based on Vines’ waiver of his right to appeal in his plea

agreement. We affirm in part and dismiss in part.

“[A] defendant who waives his right to an appeal does not subject himself to being

sentenced entirely at the whim of the district court.” United States v. Cornette,

(4th Cir. 2019) (internal quotation marks omitted). An appeal waiver does not

bar the appeal of a sentence exceeding the statutory maximum or the right to appeal a

sentence based on a constitutionally impermissible factor. Id.; see United States v.

Thornsbury,

(4th Cir. 2012) (clarifying that challenges to sentence as

“illegal” that can be raised on appeal despite appeal waiver involve “fundamental issues,”

such as claims that “a district court exceeded its authority,” premised its sentencing

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decision “on a constitutionally impermissible factor such as race,” or violated the

“post-plea violation of the right to counsel”). We also will refuse to enforce an otherwise

valid waiver “if to do so would result in a miscarriage of justice.” United States v. Adams,

(4th Cir. 2016). Moreover, an appeal waiver does prevent Vines from

arguing that his guilty plea was involuntary. See United States v. McCoy,

(4th Cir. 2018) (appeal waiver does not bar consideration of validity of guilty plea);

United States v. Carreon-Ibarra,

, 362-63 & n.3 (5th Cir. 2012) (finding claim

of Rule 11 violation for failure to inform defendant regarding proper mandatory minimum

was not waived by appellate waiver in plea agreement).

We review de novo the validity of an appeal waiver. United States v. Copeland,

(4th Cir. 2013). An appeal waiver precludes a defendant from appealing

a specific issue if (1) the waiver is valid, and (2) the issue being appealed is within the

scope of the waiver. Thornsbury,

. Vines does not directly contest the

validity of the appeal waiver; however, he asserts that his plea was involuntary because the

district court did not properly inform him of the maximum sentence on his firearm charge

or the maximum supervised release term for his drug charge. Because an involuntary plea

would naturally call into question the validity of the appeal waiver, this claim will be

addressed first.

Because Vines did not attempt to withdraw his guilty plea, we review the district

court’s acceptance thereof for plain error only. United States v. Sanya,

(4th Cir. 2014). To succeed on plain-error review, Vines “must show (1) that the district

court erred, (2) that the error was plain, and (3) that the error affected his substantial rights.”

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United States v. Cohen,

(4th Cir. 2018). In the guilty plea context, a

defendant satisfies his burden of establishing that an error affected his substantial rights by

showing a reasonable probability that he would not have pleaded guilty but for the error.

Sanya,

. In assessing whether a Rule 11 error affected a defendant’s

substantial rights, this court may consider other information provided to the defendant.

United States v. Hairston,

(4th Cir. 2008). Even if Vines satisfies the

three plain-error requirements, we “possess discretion on whether to recognize the error”

and will not “do so unless the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Cohen,

(internal quotation marks

omitted).

Here, Rule 11(b)(1)(H) requires that a district court inform the defendant in open

court of the maximum possible penalty, including imprisonment and supervised release. 1

Because the district court failed to inform Vines of the maximum sentence on his firearm

charge and the maximum supervised release term on his drug charge, the district court

plainly erred. Turning to whether the district court’s plain error affected Vines’ substantial

rights, Vines must demonstrate that, absent the error, he would not have entered his guilty

plea. See United States v. Martinez,

(4th Cir. 2002). We find that, even

though the district court plainly erred in its plea colloquy, Vines has not shown his

substantial rights were affected by the error.

1 However, “a variance from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed. R. Crim. P. 11(h).

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First, Vines was not prejudiced by the error because his plea agreement made him

aware of the relevant maximum punishments. Second, Vines was sentenced to the statutory

minimum in both instances (25 years on the firearm offense and 3 years supervised release

on the drug conviction). Third, even if Vines had been correctly advised of the maximum

sentences he faced, “there is no reason to believe that he would have sought to withdraw

from the plea agreement.” See Martinez,

. Finally, given that Vines was

informed of the maximum sentences in his plea agreement and that the district court did

not give him any incorrect information at his plea hearing, we conclude that any error does

not affect the integrity or fairness of the judicial process.

As such, Vines’ Rule 11 claim is without merit. As this was Vines’ only challenge

to the validity of the appellate waiver, we find that the waiver is enforceable. Nonetheless,

given that the Rule 11 claim challenged the validity of the appellate waiver and, thus, fell

outside the scope of the waiver, we deny the motion with regard to this claim.

Next, Vines argues that his challenge to his § 924(c) conviction based on an

inadequate predicate also fell outside the scope of his waiver. We disagree. We have

allowed appeals to go forward in the face of valid waivers when changes to the law have

potentially affected the applicability of a prior offense as a predicate. See Cornette, 932

F.3d at 208–09 (holding collateral review waiver did not bar defendant’s appeal after the

Supreme Court invalidated the “residual clause” of the Armed Career Criminal Act);

Adams,

(declining to enforce collateral review waiver where defendant

claimed actual innocence after the Fourth Circuit recategorized a predicate offense such

that defendant’s state convictions no longer sustained a

(g) conviction).

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But merely challenging the applicability of a predicate offense does not

automatically take an appeal outside the scope of a waiver. See United States v. Sturtz,

(4th Cir. 2023) (dismissing an appeal as waived by plea agreement where

defendant challenged a predicate offense under 18 U.S.C. § 2252A(b)(2)); United States v.

Brown,

(4th Cir. 2000) (dismissing an appeal as waived by plea

agreement where defendant challenged a predicate offense under sentencing guidelines).

Here, as in Sturtz and Brown, Vines challenges the applicability of a prior offense as a

predicate. There has been no change in the law since Vines pled guilty and consented to

the appeal waiver; Hobbs Act robbery still qualifies as a valid § 924(c) predicate. United

States v. Ali,

(4th Cir. 2021). Accordingly, we grant the motion to

dismiss this claim.

Finally, Vines asserts that his 300-month mandatory minimum sentence is

unconstitutional as it violates the equal protection and due process clauses, the Eighth

Amendment, and the separation of powers doctrine. 2 Only violations of fundamental

constitutional or statutory rights that are “firmly established at the time of sentencing” can

render a valid appeal waiver unenforceable. United States v. Archie,

(4th Cir. 2014). That is, to avoid the waiver based on a constitutional claim, a defendant’s

claim must allege that the court failed to “apply the established law at the time of

2 Vines also contends that his sentence was procedurally unreasonable because the district court did not properly consider his mitigating arguments and provide an appropriate explanation for his sentence. However, Vines concedes that this claim is barred by his appeal waiver. As such, we grant the motion to dismiss this claim.

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sentencing.”

Because Vines has not alleged that his assertions regarding the

constitutionality of the mandatory minimum sentence are supported by current law (or

more specifically the law at the time of sentencing), 3 his claim falls within the scope of his

waiver.

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

found no meritorious issues for appeal falling outside the scope of the waiver. We therefore

grant the motion to dismiss in part and deny in part as described above, and we affirm

Vines’ conviction and dismiss the appeal of his sentence. This court requires that counsel

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

further review. As such, we deny counsel’s motion to withdraw at this time. If Vines

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 Vines. 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

3 Vines also argues that his sentence constituted a miscarriage of justice, rendering the appellate waiver unenforceable. However, we have concluded that “the concept [of miscarriage of justice] seems to be subsumed within our analysis of the scope of the waiver.” United States v. Blick,

, 170 n.10 (4th Cir. 2005). Thus, because Vines’ contentions fall within the scope of the waiver, the enforcement of the waiver is not a miscarriage of justice.

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