                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4457


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DAMIEN HENRY THOMAS, a/k/a Boo Boo,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:14-cr-00519-PWG-1)


Submitted: May 30, 2017                                           Decided: June 15, 2017


Before AGEE, DIAZ, and THACKER, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam opinion.


Allen H. Orenberg, ORENBERG LAW FIRM, PC, North Bethesda, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Collin F. Delaney, Special Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Damien Henry Thomas appeals his conviction and sentence of 180 months of

imprisonment for conspiracy to distribute and possess with intent to distribute 280 grams

or more of crack cocaine and 500 grams or more of powder cocaine, in violation of 21

U.S.C. § 846 (2012) (Count 1), and being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g) (2012) (Count 6). He contends that there is an insufficient factual basis

to support his guilty plea to Count 1, the conspiracy charge. In addition, Thomas contends

that the district court sentenced him to an unreasonable sentence because, in view of the

alleged invalidity of the plea to Count 1, he should have been sentenced based solely on

his conviction for Count 6, the firearm charge. We affirm in part and dismiss in part.

       Because Thomas did not move to withdraw his guilty plea in the district court or

otherwise preserve any allegation of error under Federal Rule of Criminal Procedure 11,

we review the plea colloquy for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th

Cir. 2014). To establish plain error, a defendant must show that (1) there was error, (2) the

error was plain, and (3) the error affected his substantial rights. Henderson v. United States,

133 S. Ct. 1121, 1126-27 (2013). To establish that the error affected his substantial rights,

a defendant must show a reasonable probability that, but for the Rule 11 error, he would

not have pleaded guilty. United States v. Davila, 133 S. Ct. 2139, 2147 (2013). Even if a

defendant establishes all three elements, we may exercise our discretion to correct a plain

error only when necessary to prevent a miscarriage of justice or to ensure the fairness,

integrity, or public reputation of judicial proceedings. United States v. McNeal, 818 F.3d

141, 148 (4th Cir. 2016).

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       In determining whether a factual basis exists before entering judgment on 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.” United States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008)

(internal quotation marks omitted).

       “[O]ne may be a member of a conspiracy without knowing its full scope, or all its

members, and without taking part in the full range of its activities or over the whole period

of its existence.” United States v. Allen, 716 F.3d 98, 103 (4th Cir. 2013) (internal

quotation marks omitted). In addition, under the doctrine of vicarious liability set forth in

Pinkerton v. United States, 328 U.S. 640, 646 (1946), “a defendant is liable for substantive

offenses committed by a co-conspirator when their commission is reasonably foreseeable

and in furtherance of the conspiracy.” United States v. Blackman, 746 F.3d 137, 141 (4th

Cir. 2014) (internal quotation marks omitted).

       We conclude that Thomas has not shown that the district court erred in finding a

sufficient factual basis to support his guilty plea. Thomas is correct that the statement of

facts does not explicitly explain how it determined that between 280 grams and 840 grams

of cocaine base and between 500 grams and 2 kilograms of cocaine were attributable to

Thomas. However, we conclude that it is reasonably foreseeable that other members of

the conspiracy would have sold quantities of cocaine and cocaine base in addition to the

amounts sold by Thomas. See Blackman, 746 F.3d at 141; United States v. Green, 599

F.3d 360, 367 (4th Cir. 2010); United States v. Brown, 856 F.2d 710, 712 (4th Cir. 1988).



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       Furthermore, even if we were to conclude that the district court erred, Thomas has

not shown that the alleged error affected his substantial rights. Thomas does not state that

he would not have pleaded guilty but for the error. See Davila, 133 S. Ct. at 2147. Thus,

we conclude that Thomas has not shown that he is entitled to relief under plain-error

review. See Henderson, 133 S. Ct. at 1126-27.

       Next, Thomas seeks to challenge the reasonableness of his sentence.              The

Government has asserted that Thomas waived the right to appeal this claim. We review

the validity of an appellate waiver de novo and “will enforce the waiver if it is valid and

the issue appealed is within the scope of the waiver.” United States v. Adams, 814 F.3d

178, 182 (4th Cir. 2016).

       An appellate waiver must be knowing and voluntary. Id. We generally evaluate the

validity of a waiver by reference to the totality of the circumstances. United States v.

Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).          “In the absence of extraordinary

circumstances, a properly conducted Rule 11 colloquy establishes the validity of the

waiver.” Adams, 814 F.3d at 182.

       Because the district court properly conducted Thomas’ Rule 11 hearing and

Thomas’ sentencing claim falls within the scope of the appellate waiver, we conclude that

this claim is barred by the appellate waiver.

       Accordingly, we affirm the judgment of the district court in part and dismiss the

appeal in part. We dispense with oral argument because the facts and legal contentions are




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adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                AFFIRMED IN PART;
                                                                DISMISSED IN PART




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