United States v. Washington

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 8, 2007
• Docket: 06-4948
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4948

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TERRELL WASHINGTON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. W. Craig Broadwater, District Judge. (2:05-cr-00008-WCB)

Submitted: February 12, 2007 Decided: March 8, 2007

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joseph J. Harris, Morgantown, West Virginia, for Appellant. Thomas O. Mucklow, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Terrell Washington pled guilty to aiding and abetting the

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

(2000), and was sentenced to 240 months in prison. He now appeals.

The United States has moved to dismiss the appeal, based on

Washington’s waiver of his appellate rights. Washington opposes

the motion. We find that the appeal waiver is valid and

enforceable and the issues Washington seeks to raise on appeal lie

within the scope of the waiver. We therefore grant the United

States’ motion and dismiss the appeal.

I

Washington signed a written plea agreement containing the

following provision:

Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, and in exchange for the concessions heretofore made by the United States in this plea agreement, Defendant knowingly and voluntarily waives the right to appeal any sentence which is within the maximum provided in the statute of conviction or . . . the manner in which that sentence was determined on any ground whatever, including those grounds set forth in Title 18, United States Code, Section 3742.

The plea agreement set forth the maximum sentence that Washington

faced and made clear that the sentencing guidelines applied.

Washington stipulated in the agreement that the relevant conduct

was 612.26 grams of cocaine base and 301.5 grams of cocaine

hydrochloride, for a marijuana equivalency of 12,305.5 kilograms.

- 2 - At arraignment, the district court ascertained that

Washington had given up his right to appeal. The court identified

the other rights Washington waived by pleading guilty and

determined that Washington understood the charge against him and

the applicable penalty. Washington represented to the court that

he was satisfied with his attorney’s services and that he had

voluntarily entered into the plea agreement. He stated that he was

guilty of the offense charged.

Washington’s probation officer prepared a presentence

report (PSR). At sentencing, the district court overruled some of

Washington’s objections to the PSR and sustained others.

Washington’s guideline range was the statutory maximum of 240

months. After considering the factors set forth at 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006), the district court sentenced

Washington to 240 months in prison.

Washington appeals, contending that his offense level was

enhanced in violation of the Sixth Amendment based on his role in

the offense and that he should have received a reduction in his

offense level based on acceptance of responsibility. The United

States moves to dismiss the appeal, contending that Washington

validly waived his right to appeal. Washington opposes the motion.

This case is governed by our decision in United

States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick

was whether a waiver-of-appellate-rights provision in a plea

- 3 - agreement was enforceable after the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005). We employed a two-

part analysis to decide the issue. First, we considered whether

the waiver was knowing and voluntary. Blick, 408 F.3d at 169.

After deciding that it was, we considered whether the issues raised

on appeal were within the scope of the waiver. Because they were,

we dismissed the appeal. Blick, 408 F.3d at 169-73.

This court reviews de novo the validity of a waiver.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether

a waiver of the right to appeal is knowing and intelligent depends

upon the facts and circumstances surrounding its making, including

the defendant’s background, experience, and conduct. United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A waiver is

ineffective if the district court fails to question the defendant

about it, United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.

1991), unless other evidence in the record shows that the waiver

was informed and voluntary. Davis, 954 F.2d at 186.

Here, Washington’s waiver was knowing and voluntary. He

was thirty-one years old and had completed the eleventh grade. The

waiver-of-appellate-rights provision was set forth in a separate

paragraph of the plea agreement and was specifically addressed at

arraignment.

While Washington’s plea agreement prohibits an appeal of

his sentence, it is his sentence that he challenges on appeal. The

- 4 - appellate issues lie within the scope of the waiver and, under

Blick, they are not reviewable on appeal.

We therefore grant the Government’s motion and dismiss

the appeal. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

DISMISSED

- 5 -