UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEPHEN MICHAEL ROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-25)
Submitted: August 31, 2005 Decided: November 1, 2005
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, James E. Todd, Jr., Research &
Writing Attorney, Raleigh, North Carolina, for Appellant.
Christine Witcover Dean, Anne Margaret Hayes, Winnie Jordan Reaves,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Stephen Michael Rooks pleaded guilty to one count of
distribution of more than fifty grams of crack, in violation of 21
U.S.C. § 841(a)(1) (2000), and was sentenced to 120 months in
prison. He now appeals. The United States moves to dismiss the
appeal based on Rooks’ waiver of his appellate rights in his plea
agreement. We grant the motion and dismiss the appeal.
Rooks signed a written plea agreement containing the
following provision:
The Defendant agrees . . . [t]o 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.
The plea agreement set forth the minimum and maximum sentence that
Rooks faced, made clear that the sentencing guidelines applied, and
stated that the court would apply a sentence within the guidelines
unless there was a basis for departure.
At Rooks’ Fed. R. Crim. P. 11 hearing, the district court
ascertained that Rooks was twenty-one years old and a high school
graduate. He was not under the influence of drugs or alcohol. The
court identified the rights that Rooks waived by pleading guilty,
and specifically mentioned the right to appeal. Rooks informed the
court that he understood the court’s explanation of the rights he
was waiving by pleading guilty. The court ascertained that Rooks
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understood the charges against him, the applicable penalties, and
the mandatory nature of the sentencing guidelines. Rooks
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.
After hearing the Government’s proffer, the district court
concluded that Rooks had knowingly and voluntarily entered his
plea, which was supported by an independent factual basis. The
court accordingly adjudged Rooks guilty.
At sentencing, the district court overruled Rooks’
objection to the presentence report, determined that Rooks’
guideline range was 120-121 months, and sentenced him to 120 months
in prison. Rooks appeals, contending that the district court
violated the Sixth Amendment when it assigned him two criminal
history points because he committed the instant offense while on
supervised probation. The United States responds that Rooks
validly waived his right to appeal this issue.
This case is governed by our recent 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
agreement was enforceable after the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005). We employed a two-
part analysis to decide the issue. First, we considered whether
the waiver was knowing and voluntary. Having decided that it was,
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we asked whether the issues raised on appeal were within the scope
of that waiver. They were, and the appeal was dismissed. Blick,
408 F.3d at 168-73.
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, Rooks’ waiver was clearly knowing and voluntary.
He was twenty-one, a high school graduate, and not under the
influence of drugs or alcohol when he entered his plea. The
district judge questioned him about the waiver of his appellate
rights, and Rooks stated that he understood what rights he was
waiving. The details of the waiver were clearly set forth in the
written plea agreement.
In his plea agreement, Rooks reserved the right to appeal
an upward departure from his guideline range. Here, he attempts to
challenge the calculation of his criminal history category. This
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issue lies within the scope of the appellate waiver. In accordance
with Blick, we will enforce the waiver.
We therefore grant the 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. The motion to
suspend the briefing schedule is denied as moot.
DISMISSED
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