UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4651

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CALVIN COLWETH GARNER, JR., a/k/a Spoke,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Terrence W. Boyle, 

District Judge. (4:10-cr-00079-BO-1)

Submitted: March 28, 2013 Decided: April 4, 2013

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North 

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Calvin Colweth Garner, Jr., pled guilty to conspiracy 

to distribute and possess with intent to distribute fifty grams 

or more of cocaine base and five kilograms or more of cocaine,

21 U.S.C. § 846 (2006), and conspiracy to launder monetary 

instruments, 18 U.S.C. § 1956(h) (2006). The district court 

granted the Government’s motion for a downward departure based 

on Garner’s substantial assistance and imposed a belowGuidelines sentence of 330 months’ imprisonment. On appeal, 

Garner’s attorney filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), stating that, in his view, 

there are no meritorious grounds for appeal but questioning 

whether (1) the district court sufficiently complied with Fed. 

R. Crim. P. 11 in accepting Garner’s guilty plea; (2) the 

appellate waiver in the plea agreement is valid; and (3) the 

district court erred in imposing a four-level sentencing 

enhancement for Garner’s leadership role in the offense. Garner 

has filed a pro se supplemental brief also challenging the 

enhancement for his role in the offense, as well as the 

sentencing court’s drug quantity determination and imposition of 

enhancements for obstruction of justice and possession of a 

firearm. The Government has not filed a response. We affirm.

Prior to accepting a guilty plea, the district court 

must conduct a plea colloquy in which it informs the defendant 
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of, and determines that the defendant understands: the nature of 

the charges to which he is pleading guilty, 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). 

Additionally, the district court must ensure that the 

defendant’s plea was voluntary and did not result from force, 

threats, or promises not contained in the plea agreement. Fed. 

R. Crim. P. 11(b)(2). Because Garner 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, 524–27 (4th Cir. 2002).

We find that the district court substantially complied 

with Rule 11’s requirements, and committed no error warranting 

correction on plain error review. We therefore affirm Garner’s 

convictions.

Next, Garner’s counsel questions the validity of 

Garner’s appeal waiver. In his plea agreement, Garner agreed to 

waive his right to appeal any sentence unless such sentence 

exceeded the Sentencing Guidelines range established at 

sentencing. However, the Government has not sought to enforce 

the waiver. It is this court’s policy not to raise this issue 

sua sponte. United States v. Poindexter, 492 F.3d 263, 271 (4th 

Cir. 2007) (stating that, if Anders brief is filed in case with 
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appeal waiver, Government’s failure to respond “allow[s] this 

court to perform the required Anders review”); see United States 

v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (stating that, where 

Government expressly elects not to raise waiver, this court may 

decline to consider it). Accordingly, by failing to file a 

response, the Government cannot enforce the appellate waiver in 

Garner’s plea agreement. 

Last, Garner’s appellate counsel questions the 

reasonableness of Garner’s sentence, specifically challenging 

the district court’s imposition of a four-level enhancement for 

Garner’s role in the offense. In addition to raising this same 

claim, Garner’s pro se supplemental brief also challenges the 

sentencing court’s drug quantity determination (based on the 

presentence report) and the sentencing court’s enhancements for 

obstruction of justice and possession of a firearm. 

This court reviews Garner’s sentence for 

reasonableness under a “deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This 

review entails appellate consideration of both the procedural 

and substantive reasonableness of the sentence. Id. at 51. In 

determining procedural reasonableness, this court considers 

whether the district court properly calculated the defendant’s 

advisory Guidelines range, considered the 18 U.S.C. § 3553(a)

(2006) factors, selected a sentence based on clearly erroneous 
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facts, or failed to explain sufficiently the selected sentence. 

Id. at 49-51. If the sentence is free of significant procedural 

error, this court reviews it for substantive reasonableness, 

“tak[ing] into account the totality of the circumstances.” Id.

at 51. 

Because Garner withdrew all of his objections to the 

presentence report at sentencing, including the claims regarding 

drug quantity, the role in the offense enhancement, and the 

firearm enhancement, appellate review of these claims is waived. 

Generally, unpreserved errors in sentencing are reviewed for 

plain error. See Fed. R. Crim. P. 52(b); United States v. 

Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may 

waive appellate review of a sentencing error if he raises it and 

then knowingly withdraws an objection to the error before the 

district court. See United States v. Horsfall, 552 F.3d 1275, 

1283 (11th Cir. 2008) (finding that defendant’s withdrawal of 

objection to upward departure precluded appellate review of 

departure); United States v. Rodriguez, 311 F.3d 435, 437 (1st 

Cir. 2002) (“A party who identifies an issue, and then 

explicitly withdraws it, has waived the issue.”). An appellant 

is precluded from challenging a waived issue on appeal. See

Rodriguez, 311 F.3d at 437. Such a waiver is distinguishable 

“from a situation in which a party fails to make a timely 

assertion of a right—what courts typically call a ‘forfeiture,’” 
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id. (quoting Olano, 507 U.S. at 733), which, as noted above, may 

be reviewed on appeal for plain error. See Olano, 507 U.S. at 

733-34. Because Garner expressly withdrew his objections at 

sentencing to the drug quantity determination and the 

enhancements of which he now seeks review, this court is 

precluded from considering these issues on appeal.

In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

We therefore affirm Garner’s convictions and sentence. This 

court requires that counsel inform Garner, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Garner 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 Garner. 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