UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4884

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SEDIEKA MCCLAM,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. R. Bryan Harwell, District Judge. 

(4:12-cr-00058-RBH-1)

Submitted: May 7, 2013 Decided: June 11, 2013

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam 

opinion.

James P. Rogers, Assistant Federal Public Defender, Columbia, 

South Carolina, for Appellant. Alfred William Walker Bethea, 

Assistant United States Attorney, Florence, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Sedeika McClam was sentenced to 262 months’ 

imprisonment after pleading guilty, pursuant to a plea 

agreement, to possession with intent to distribute marijuana and 

cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), 

(b)(1)(D) (2006), and possession of a firearm in furtherance of 

a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c)(1)(A) (2006). On appeal, counsel filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), stating 

that there are no meritorious issues for appeal but questioning 

whether the McClam’s guilty plea was invalid and whether his 

sentence was unreasonable. The Government moved to dismiss 

McClam’s appeal, asserting that he waived the right to appeal 

his conviction and sentence in the plea agreement. We dismiss 

in part and affirm in part.

I.

Rule 11 requires that the trial court, prior to 

accepting a guilty plea, conduct a plea colloquy in which it 

informs the defendant of the charges to which he is pleading and 

determines that he comprehends the nature of those charges, any 

mandatory minimum penalty, the maximum possible penalty, and the 

rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 

1991). The district court must also ensure that the defendant’s 
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plea is voluntary, and that there is a factual basis for the 

plea. Fed. R. Crim. P. 11(b)(2), (3). In reviewing compliance 

with Rule 11, this court accords deference to the trial court’s 

decision as to how to best conduct the mandated colloquy with 

the defendant. DeFusco, 949 F.2d at 116.

Because McClam did not move to withdraw his guilty 

plea in the district court or raise any objections to the Rule 

11 colloquy, we review the colloquy for plain error. United 

States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To 

demonstrate plain error, a defendant must show: (1) there was 

error, (2) the error was plain, and (3) the error affected his 

“substantial rights.” United States v. Olano, 507 U.S. 725, 

732-34 (1992). To establish that a Rule 11 error has occurred, 

the defendant “must show a reasonable probability that, but for 

the error, he would not have entered the plea.” United 

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). 

Upon review of the transcript of the Fed. R. Crim. P. 

11 hearing, we conclude that the district court complied with 

Rule 11’s requirements. The court ensured that McClam’s guilty 

plea was knowing and voluntary and supported by a factual basis, 

and that McClam understood the rights he was giving up by 

pleading guilty and the sentence he faced. 
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II.

We review de novo whether a defendant has effectively 

waived the right to appeal. United States v. Marin, 961 F.2d 

493, 496 (4th Cir. 1992). A defendant may, in a valid plea 

agreement, waive the right to appeal under 18 U.S.C. § 3742 

(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 

1990). An appellate waiver must be “the result of a knowing and 

intelligent decision to forgo the right to appeal.” United 

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) 

(internal quotation marks and citation omitted).

To determine whether a waiver is knowing and 

intelligent, this court examines the totality of the 

circumstances, including the defendant’s experience, conduct, 

educational background, and familiarity with the plea 

agreement’s terms. United States v. General, 278 F.3d 389, 400 

(4th Cir. 2002). Generally, if a court fully questions a 

defendant regarding the appellate waiver during the Rule 11 

colloquy, the waiver is both valid and enforceable. United 

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However, 

we will refuse to enforce an otherwise valid waiver if 

enforcement would result in a miscarriage of justice. Id.

Upon review of the plea agreement and the transcript 

of the Fed. R. Crim. P. 11 hearing, we conclude that McClam 

knowingly and intelligently agreed to the waiver of appellate 
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rights as set forth in the plea agreement. During the Rule 11 

hearing the court reviewed the terms of the plea agreement, 

including the waiver provision, with McClam, and McClam affirmed 

that he understood those terms. Moreover, McClam does not 

contest the validity of the waiver in his Anders brief or in his 

response to the Government’s motion to dismiss the appeal. 

We further conclude that McClam’s challenge to the 

reasonableness of his sentence falls squarely within the scope 

of the waiver provision. McClam expressly agreed to waive the 

right to contest his sentence in any direct appeal. We 

therefore grant the Government’s motion to dismiss McClam’s 

appeal of his sentence.

III.

Counsel for McClam has also filed a letter pursuant to 

Fed. R. App. P. 28(j), citing the Supreme Court’s recent 

decision in Florida v. Jardines, 133 S. Ct. 1409 (2013) (use of 

drug-sniffing dog on defendant’s front porch was search within 

meaning of Fourth Amendment). Before pleading guilty, McClam 

filed a motion to suppress, and counsel now contends that had 

Florida v. Jardines then been decided, McClam would not have 

withdrawn his motion. However, McClam has waived the Fourth 

Amendment claim by knowingly and voluntarily pleading guilty. 

United States v. Bowles, 602 F.3d 581, 582-83 (4th Cir. 2010) 

(guilty plea constitutes waiver of all antecedent 
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nonjurisdictional defects). Because the district court properly 

conducted the Rule 11 colloquy, and because McClam did not 

attempt to preserve the issue for review by entering a 

conditional guilty plea, McClam has relinquished the right to 

raise this issue on appeal. Id. That Jardines had not yet been 

decided when he withdrew the motion provides no excuse for 

McClam’s failure to preserve the issue for appellate review. 

See Brady v. United States, 397 U.S. 742, 757 (1970) (“[A] 

voluntary plea of guilty intelligently made in the light of the 

then applicable law does not become vulnerable because later 

judicial decisions indicate that the plea rested on a faulty 

premise.”).

IV.

In accordance with Anders, we have reviewed the entire 

record and have found no unwaived meritorious issues for appeal. 

We therefore affirm McClam’s conviction. 

This court requires that counsel inform McClam, in 

writing, of his right to petition the Supreme Court of the 

United States for further review. If McClam requests that a 

petition be filed, but counsel believes such a petition would be 

frivolous, counsel may move in this court for leave to withdraw 

from representation. Counsel’s motion must state that a copy 

thereof was served on McClam. We dispense with oral argument 

because the facts and legal contentions are adequately presented 
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in the materials before this court and argument would not aid 

the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART