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

UNPUBLISHED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Dismissed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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.

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

Uploaded by

Copyright:

Available Formats

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

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

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

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

January 27, 2012

Before SHEDD, WYNN, and FLOYD, Circuit Judges.

Dismissed in part, vacated in part, and remanded by unpublished

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

Unpublished opinions are not binding precedent in this circuit.

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

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

sentence is unlawful because the district court calculated the

Yanceys plea agreement, the Government urges the dismissal of

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

waiver is knowing and intelligent.

United States v. Poindexter,

court fully questions a defendant regarding the waiver of his

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

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

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

precludes Yanceys challenge as to the district courts drug

agree that Yanceys career offender classification depends on

The Government agreed at sentencing

determine whether a prior North Carolina conviction may serve as

sentences are contingent on two factors:

the designated class

of offense and the offenders prior record level.

Yanceys state judgment of conviction, which suggests that the

the district court had no opportunity to consider the judgment

judgments validity or gauge its implication, we decline to take

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

By this disposition, we intimate no view as to whether

You might also like