UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4629

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVON TYSHAUN BAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (7:12-cr-00030-BO-1)

Submitted: April 28, 2014 Decided: May 20, 2014

Before KING, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. H. Paramore, III, W.H. PARAMORE, III, P.C., Jacksonville, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Javon Tyshaun Baker pleaded guilty pursuant to a plea 

agreement to one count of possession with intent to distribute 

marijuana, in violation of 21 U.S.C. § 841(a)(1), and possession 

of firearms in furtherance of a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c)(1)(A)(i). Baker challenges only 

his firearms conviction on appeal. He asserts that this 

conviction should be vacated because, at the Rule 11 hearing,

the district court: (1) failed to adequately explain the 

appellate waiver in his plea agreement; and (2) did not require 

a factual basis to show that Baker possessed firearms “in 

furtherance” of a drug trafficking crime. We affirm.

I.

A defendant may waive his appellate rights pursuant to a 

plea agreement, and we have consistently upheld the validity of 

appellate waivers. See, e.g., United States v. Manigan, 592 

F.3d 621, 627 (4th Cir. 2010). A valid appellate waiver will 

preclude the appeal of an issue that falls within the scope of 

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

2005). Whether a defendant validly waived his right to appeal 

is a question of law that we review de novo. Id.
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Our independent review of the record supports the 

conclusion that Baker voluntarily and knowingly waived his right 

to appeal his firearms conviction. The district court properly 

determined that Baker was competent and that he entered his plea 

voluntarily. Baker stated that he fully discussed the case with 

his attorney and was satisfied with the attorney’s 

representation. The district court specifically discussed the 

appellate waiver contained in Baker’s plea agreement, and Baker 

confirmed the accuracy of the court’s description. Thus, we 

conclude that the district court substantially complied with 

Rule 11 requirements, and the appellate waiver is valid and 

enforceable.

II.

Baker contends nonetheless that the appellate waiver does 

not foreclose his claim that the government did not proffer a 

sufficient factual basis to support his plea of guilty to 

possessing firearms in furtherance of a drug trafficking crime. 

We acknowledge some uncertainty in this circuit about whether a 

defendant may waive the Rule 11 requirement that a district 

court determine whether there is a sufficient factual basis for 

the defendant’s plea. Compare United States v. Bell, 359 F. 

App’x 442, 444 (4th Cir. 2010) (unpublished) (suggesting a 

defendant can challenge whether there was a factual basis for 

his plea on appeal notwithstanding a valid appellate waiver 
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because the challenge attacks the validity of the plea itself), 

with United States v. Carter, 267 F. App’x 203, 203 (4th Cir. 

2008) (unpublished) (concluding that a valid and enforceable 

appellate waiver foreclosed defendant’s appeal that the 

government’s proffer at the Rule 11 hearing was inadequate). 

Rather than rely on waiver here, we choose to resolve 

Baker’s argument that his plea to the firearms conviction was 

not knowing and voluntary on the merits. Based on a careful 

review of the record, we conclude the district court complied 

with Rule 11, as there was a sufficient factual basis for 

Baker’s plea.

“Federal Rule of Criminal Procedure 11(b)(3) requires the 

district court to determine whether a factual basis exists 

before entering judgment on a guilty plea.” United States v. 

Ketchum, 550 F.3d 363, 366 (4th Cir. 2008). It is well settled, 

however, that in determining the existence of a factual basis 

for a guilty plea, “the district court possesses wide 

discretion, and it need only be subjectively satisfied that 

there is a sufficient factual basis for a conclusion that the 

defendant committed all of the elements of the offense.” Id.

(internal quotation marks omitted).

To sustain a conviction under the second prong of § 924(c), 

the government must present evidence “indicating that the 

possession of a firearm furthered, advanced, or helped forward a 
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drug trafficking crime.” United States v. Lomax, 293 F.3d 701, 

705 (4th Cir. 2002). Whether a firearm served such a purpose is 

a question of fact. Id. When making this factual 

determination, the factfinder may consider: “the type of drug 

activity that is being conducted, accessibility of the firearm, 

the type of weapon, whether the weapon is stolen, the status of 

the possession (legitimate or illegal), whether the gun is 

loaded, proximity to drugs or drug profits, and the time and 

circumstances under which the gun is found.” Id. (internal 

quotation marks omitted). Moreover, possession may be either 

actual or constructive. See United States v. Maldonado-Garcia, 

446 F.3d 227, 231 (1st Cir. 2006); United States v. Bailey, 329 

F. App’x 439, 441 (4th Cir. 2009) (unpublished). 

In this case, the government’s proffer showed that 

investigators searching Baker’s home found significant amounts 

of marijuana; a marijuana grinder; a digital scale; two loaded 

handguns, one with an obliterated serial number; seventy 

additional rounds of ammunition; $683 in cash; and video camera 

surveillance equipment. The loaded .32 caliber revolver was 

located under the living room couch cushion; additional .32 

caliber ammunition was found in the dresser in the master 

bedroom; the loaded Glock .45 caliber pistol--which had no 

serial number because it had been removed--was found under the 

pillow in the master bedroom; .45 caliber ammunition was found 
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in the dresser in the master bedroom; and $675 in cash and a 

letter addressed to Baker were both located in the bedroom.

In addition, the marijuana was not confined to one area of 

the house. Indeed, it was found “throughout the house” in the 

living room, kitchen, and master bedroom, as were the firearms 

and ammunition. J.A. 23. Baker admitted to ownership of the 

firearms and to selling the marijuana and, as the government 

argued, the video camera allowed Baker to monitor anyone who was 

approaching his residence, including law enforcement.

These facts were more than sufficient to show that Baker 

possessed the firearms to “further[], advance[], or help[] 

forward” his marijuana trafficking activities. United States v. 

Robinson, 627 F.3d 941, 955 (4th Cir. 2010).* Thus, it was not 

error for the district court to accept Baker’s plea.

We affirm the district court’s judgment. 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 in the decisional process.

AFFIRMED

 * Although Baker cites to this court’s unpublished opinion 

in United States v. Benson, 63 F. App’x 88 (4th Cir. 2003), we 

find the case inapposite. The evidence the government proffered 

at the Rule 11 hearing in this case far exceeded the evidence at 

issue in Benson.