UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4765
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHIRLEY A. MCDONALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-20-F)
Submitted: June 30, 2005 Decided: July 29, 2005
Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Writing and
Research Attorney, Raleigh, North Carolina, for Appellant. John
Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Shirley A. McDonald pleaded guilty to conspiracy to
defraud the Internal Revenue Service, in violation of 18 U.S.C.
§ 286 (2000), and was sentenced to thirty-seven months in prison.
On appeal, she claims that her sentence violates United States v.
Booker, 125 S. 738 (2005). The United States moves to dismiss
based on McDonald’s waiver of her right to appeal her sentence.
Because we find that the waiver was knowing and voluntary and
because the issue McDonald seeks to raise on appeal lies within the
scope of her waiver, we grant the motion and dismiss the appeal.
In her plea agreement, McDonald agreed:
9. To waive knowingly and expressly all
rights, conferred by 18 U.S.C. § 3742, to
appeal whatever sentence is imposed,
including any issues that relate to the
establishment of the Guideline range,
reserving only the right to appeal from
an upward departure from the Guideline
range that is established at sentencing,
. . . excepting an appeal . . . based
upon grounds of ineffective assistance of
counsel or prosecutorial misconduct not
known to the Defendant at the time of the
Defendant’s guilty plea.
(J.A. 17).
At McDonald’s Fed. R. Crim. P. 11 proceeding, the
district court ascertained that McDonald had read the indictment,
had discussed her case with her lawyer, was satisfied with her
attorney’s services, and understood the rights she was waiving by
pleading guilty. McDonald was fifty years old, a college graduate,
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and not under the influence of drugs or alcohol. McDonald was
informed of the maximum possible penalty for the offense and the
applicability of the sentencing guidelines. She stated that she
was guilty of the offense and was pleading guilty voluntarily. The
district court inquired whether McDonald understood the terms of
her appeal waiver; McDonald replied that she did. The court found
that the plea was freely and intelligently made and accepted it.
McDonald’s presentence report recommended a base offense
level of six. Eight levels were added for amount of loss and four
levels were added for McDonald’s role in the offense. With an
adjusted offense level of 18 and a criminal history category of
III, the resulting guideline range was 33-41 months. The maximum
term of imprisonment to which she was statutorily subject was ten
years. See 18 U.S.C. § 286. The district court adopted the
findings in the presentence report and sentenced her to thirty-
seven months in prison.
McDonald contends that the district court violated Booker
when it enhanced her sentence by determining amount of loss and her
role in the offense. However, we recently held in United States v.
Blick, 408 F.3d 162 (4th Cir. 2005), that a waiver-of-appellate-
rights provision in a plea agreement is enforceable in the face of
a Booker violation if the waiver was knowing and intelligent and if
the issues raised by the defendant lie within the scope of the
waiver. Id. at 169.
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Under Blick, we conclude first that McDonald’s waiver was
knowing and intelligent. She was fifty years old, a college
graduate, and not under the influence of drugs or alcohol when she
entered her plea. She had read the indictment, had consulted with
an attorney, and was satisfied with her lawyer’s services. The
terms of the appellate waiver were clearly set forth both in the
plea agreement and at the Rule 11 proceeding, where they were
specifically discussed.
Having concluded that the waiver was knowing and
intelligent, we next consider whether the issue raised on appeal
lies within the scope of the waiver. McDonald waived “whatever
sentence is imposed, including any issues that relate to the
establishment of the Guideline range, reserving only the right to
appeal from an upward departure from the Guideline range.” On
appeal, she objects to the district court’s determination of amount
of loss and role in the offense under the guidelines—matters that
plainly relate to the establishment of McDonald’s guideline range.
Under Blick, this issue is waived.
We therefore grant the United States’ motion to 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
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