Argued: March 22, 2018
from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:15-cr-00273-FDW-DCK-3)
W. Kilbourne, Jr., DUNGAN, KILBOURNE & STAHL, PA,
Asheville, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Lenard McCoy pleaded guilty, pursuant to a plea agreement, to
a federal drug trafficking conspiracy. In the agreement,
McCoy waived his right to appeal his conviction and
"whatever sentence is imposed," except on the basis
of ineffective assistance of counsel and prosecutorial
misconduct. Despite this waiver, McCoy now appeals, arguing
that (1) a factual basis doesn't support his guilty plea,
and (2) that the district court erred in its application of
the Sentencing Guidelines to his case.
government has moved to dismiss the appeal based on the
waiver. McCoy responds that a challenge to the factual basis
of a plea falls outside the scope of a valid waiver. We
agree, but find that a factual basis supports his plea. And
because McCoy's waiver is otherwise knowing and
voluntary, it forecloses his remaining claims on appeal. We
therefore grant the Government's motion to dismiss the
appeal in part and affirm McCoy's conviction and
November 2015, a federal grand jury indicted Alex McCoy on
four related drug charges. Count one charged McCoy with
participating in a crack-cocaine trafficking conspiracy
centered around Gaston County, North Carolina in violation of
21 U.S.C. §§ 841(a)(1) and 846, while the remaining
three counts charged McCoy with distribution and possession
of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
eventually agreed to plead guilty to count one in exchange
for the government dismissing the three other charges and
withdrawing information about a prior felony drug conviction.
The plea agreement included a joint recommendation regarding
the quantity of crack cocaine or "cocaine base"
involved in the conspiracy along with an appellate waiver.
Specifically, McCoy agreed to waive "all such rights to
contest the conviction except for: (1) claims of ineffective
assistance of counsel or (2) prosecutorial misconduct"
or "otherwise to appeal whatever sentence is imposed
with the two exceptions set forth above." J.A. 87.
parties further stipulated to a factual basis signed by
McCoy's lawyer and adopted by McCoy during his Rule 11
plea colloquy. This factual basis stated that "McCoy was
a member of a conspiracy with others, in Gaston County . . .
to distribute and to possess with intent to distribute
cocaine base, commonly known as 'crack
cocaine.'" J.A. 38. The document also provided that
"[t]he amount of cocaine base ('crack cocaine')
that was known to or reasonably foreseeable by the Defendant
was at least eight hundred and forty (840) grams but less
than two thousand eight hundred (2, 800) grams." J.A.
Rule 11 hearing was held before a magistrate judge on June 1,
2016. That morning, the government realized the plea
agreement referred to cocaine, rather than cocaine base, when
discussing the quantity of drugs involved in the conspiracy.
After discussing the error with defense counsel, the
government proposed "a pen and ink change to page 2 of
the plea agreement" by adding the word base after
cocaine to clarify that "what we're talking about is
cocaine base" not "powder cocaine." J.A. 48.
Defense counsel voiced no objection to the change and the
court permitted the revision. The government and McCoy's
lawyer initialed next to the change. McCoy did not.
government then proceeded to summarize (incorrectly) the
terms of the plea agreement, stating the minimum quantity of
cocaine base (or crack cocaine) involved in the conspiracy
was "at least 240 grams" when the minimum amount
set forth in the plea agreement was in fact 840 grams. J.A.
49. After the government's summary, the magistrate judge
engaged in ...