United States v. Connor

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 11, 1997
• Docket: 96-41075
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-41075 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK D. CONNOR,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:96-CR-6-1 - - - - - - - - - - December 9, 1997 Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Mark D. Connor appeals his conviction and sentence in a

guilty-plea conviction for one count of failure to pay income

tax, a violation of 26 U.S.C. § 7201. He argues that his guilty

plea was involuntarily given because the prosecutor refused to

accept any plea other than guilty, that the district court erred

in failing to grant or enforce his discovery motions, and that

venue was improper. He further argues that the district court

erred in failing to consider or grant a downward departure

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 96-41075 -2-

pursuant to U.S.S.G. § 5K2.10 or § 5K2.11, and that it was error

to calculate base tax loss based on years outside any applicable

statute of limitations for conviction.

Having carefully reviewed the record and the parties briefs,

we find that Connor voluntarily and intelligently agreed,

pursuant to a plea agreement, to plead guilty. See United States

v. Henry, 113 F.3d 37, 40 (5th Cir. 1997). An unconditional

guilty plea, made knowingly, voluntarily, and with the benefit of

competent counsel, functionally waives all non-jurisdictional

defects that occurred during pre-plea proceedings. United States

v. Jackson, 659 F.2d 73 (5th Cir. 1981); United States v. Taylor,

814 F.2d 172, 174 (5th Cir. 1987). Moreover, in the plea

agreement, Connor voluntarily agreed to waive his statutory right

to appeal, as well as associated constitutional rights, thus he

has waived his right to appeal any errors regarding discovery or

venue. Accordingly those issues are DISMISSED. See United

States v. Melancon, 972 F.2d 566, 567-86 (5th Cir. 1992); United

States v. Price, 95 F.3d 364, 369 (5th Cir. 1996).

With regards to sentencing issues, the application of

departures pursuant to U.S.S.G. §§ 5K2.10 and 5K2.11 would have

been inappropriate as the offense of conviction was a non-violent

offense based on the defendant’s belief that the government’s

policies were misguided, therefore it was not plain error for the

district court not to consider them. See U.S.S.G. § 5K2.10,

§ 5K2.11. See also United States v. Olano, 507 U.S. 725, 732-36 No. 96-41075 -3-

(1993); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.

1990).

In determining the total tax loss attributable to the

offense, all conduct violating the tax laws should be considered

where it is part of the same course of conduct showing a

continuing pattern of violations of the tax laws. U.S.S.G.

§ 2T1.1, comment. (n.2). As there is no separate statute of

limitations under the Sentencing Guidelines beyond which relevant

conduct becomes irrelevant, it was not plain error for the

district court to calculate tax loss for sentencing purposes

based on Connor’s failure to pay taxes for the years 1984-1994,

inclusive. See United States v. Vital, 68 F.3d 114, 118 (5th

Cir. 1995); United States v. Powell, 124 F.3d 655, 664 (5th Cir.

1997).

AFFIRMED.