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  • United States v. Anthony Yancey, 4th Cir. (2012)

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    The defendant pled guilty to conspiracy to distribute heroin. He received a 155 month prison sentence. He appealed his sentence, arguing that 1) his career offender status was incorrectly applied, and 2) drug weights were calculated based on informant statements, not actual weights. The court found that he validly waived his right to appeal the drug weight calculation in his plea agreement, so it dismissed that part of the appeal. However, his claim regarding career offender status was not waived. The court vacated the sentence in part and remanded to the district court to determine if one of his prior convictions still qualifies as a predicate offense for career offender status after a relevant 2011 ruling.

    Original Description:

    Filed: 2012-02-02 Precedential Status: Non-Precedential Docket: 11-4792

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    The defendant pled guilty to conspiracy to distribute heroin. He received a 155 month prison sentence. He appealed his sentence, arguing that 1) his career offender status was incorrectly applied, and 2) drug weights were calculated based on informant statements, not actual weights. The court found that he validly waived his right to appeal the drug weight calculation in his plea agreement, so it dismissed that part of the appeal. However, his claim regarding career offender status was not waived. The court vacated the sentence in part and remanded to the district court to determine if one of his prior convictions still qualifies as a predicate offense for career offender status after a relevant 2011 ruling.

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    64 views5 pages

    United States v. Anthony Yancey, 4th Cir. (2012)

    Uploaded by

    Scribd Government Docs
    The defendant pled guilty to conspiracy to distribute heroin. He received a 155 month prison sentence. He appealed his sentence, arguing that 1) his career offender status was incorrectly applied, and 2) drug weights were calculated based on informant statements, not actual weights. The court found that he validly waived his right to appeal the drug weight calculation in his plea agreement, so it dismissed that part of the appeal. However, his claim regarding career offender status was not waived. The court vacated the sentence in part and remanded to the district court to determine if one of his prior convictions still qualifies as a predicate offense for career offender status after a relevant 2011 ruling.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 11-4792

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    ANTHONY SEAN YANCEY, a/k/a Shizz,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Greenville. Louise W. Flanagan,
    District Judge. (4:10-cr-00106-FL-1)

    Submitted:

    January 27, 2012

    Decided:

    February 2, 2012

    Before SHEDD, WYNN, and FLOYD, Circuit Judges.

    Dismissed in part, vacated in part, and remanded by unpublished


    per curiam opinion.

    Stacey A. Phipps, Raleigh, North Carolina, for Appellant.


    Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Kristine L. Fritz, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Anthony Sean Yancey pled guilty pursuant to a plea
    agreement to one count of conspiracy to distribute and possess
    with

    intent

    to

    distribute

    heroin,

    in

    violation

    of

    21

    U.S.C.

    846 (2006), and was sentenced to 155 months in prison.


    appeal,

    Yancey

    incorrectly

    asserts

    increased

    that

    based

    on

    his

    base

    offense

    his

    purported

    On

    level

    career

    was

    offender

    status because he argues that after United States v. Simmons,


    649 F.3d 237 (4th Cir. 2011), he has only one proper career
    offender

    predicate

    offense.

    Yancey

    also

    asserts

    that

    his

    sentence is unlawful because the district court calculated the


    drug weights with which to attribute him at sentencing based not
    on actual drug weight, but on statements made by confidential
    informants.

    Relying

    on

    the

    waiver

    of

    appellate

    rights

    in

    Yanceys plea agreement, the Government urges the dismissal of


    this appeal as to Yanceys drug weight calculation argument, and
    asks

    that

    we

    classification.
    A

    affirm

    as

    to

    Yanceys

    career

    offender

    We dismiss in part, vacate in part, and remand.

    defendant

    may

    waive

    the

    waiver is knowing and intelligent.


    492 F.3d 263, 270 (4th Cir. 2007).

    right

    to

    appeal

    if

    that

    United States v. Poindexter,


    Generally, if the district

    court fully questions a defendant regarding the waiver of his


    right to appeal during the plea colloquy performed in accordance
    with

    Fed.

    R.

    Crim.

    P.

    11,

    the
    2

    waiver

    is

    both

    valid

    and

    enforceable.
    Cir. 2005).

    United States v. Johnson, 410 F.3d 137, 151 (4th


    The question of whether a defendant validly waived

    his right to appeal is a question of law that this court reviews


    de novo.
    2005).

    United States v. Blick, 408 F.3d 162, 168 (4th Cir.

    We conclude that Yancey knowingly and voluntarily waived

    the right to appeal any sentence imposed, reserving only the


    right to appeal a sentence above the Guidelines range calculated
    at sentencing and claims of ineffective assistance of counsel or
    prosecutorial

    misconduct.

    Because

    the

    waiver

    is

    valid

    and

    precludes Yanceys challenge as to the district courts drug


    weight calculation, we dismiss the appeal in part.
    Yanceys appellate waiver does not bar his claim that
    he was improperly classified as a career offender. 1

    The parties

    agree that Yanceys career offender classification depends on


    whether Yanceys September 13, 2007 North Carolina conviction
    for possession with intent to sell or deliver ecstasy, for which
    Yancey was sentenced to nine to eleven months in prison, remains
    a proper career offender predicate offense after Simmons, 649
    F.3d at 244 (holding that a district court must look to whether
    a

    particular

    defendant

    could

    receive

    more

    than

    one

    year

    in

    prison based upon his offense class and prior record level to

    The Government agreed at sentencing


    appeal his career offender classification.

    that

    Yancey

    could

    determine whether a prior North Carolina conviction may serve as


    a career offender predicate offense).
    Under

    the

    North

    Carolina

    Structured

    sentences are contingent on two factors:

    Sentencing

    the designated class

    of offense and the offenders prior record level.


    Stat.

    included

    15A-1340.13(b)
    as

    an

    (2009).

    addendum

    to

    Although

    its

    Act,

    the

    appellate

    N.C. Gen.

    Government

    brief

    copy

    has
    of

    Yanceys state judgment of conviction, which suggests that the


    September 13th conviction was for a Class H offense, and that
    his prior record level was IV, the district court record is
    devoid of evidence establishing whether the conviction remains a
    proper career offender predicate offense after Simmons.

    Because

    the district court had no opportunity to consider the judgment


    of conviction for the September 13th conviction, and since the
    parties

    were

    not

    given

    the

    opportunity

    to

    litigate

    the

    judgments validity or gauge its implication, we decline to take


    judicial notice over the judgment of conviction.
    States

    v.

    Vann,

    660

    F.3d

    771,

    776

    n.6

    (4th

    See United
    Cir.

    2011).

    Accordingly, we vacate Yanceys sentence, in part, and remand


    the matter to the district court so it may determine, in the
    first

    instance,

    whether

    Yanceys

    September

    13th

    conviction

    remains

    proper

    career

    offender

    predicate

    offense

    after

    Simmons. 2
    We dispense with oral argument because the facts and
    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.

    DISMISSED IN PART;
    VACATED IN PART;
    AND REMANDED

    By this disposition, we intimate no view as to whether


    Yancey remains a career offender after Simmons.

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