UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4584
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER SCOTT THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-92)
Submitted: December 22, 2005 Decided: February 1, 2006
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lucky T. Osho, LAW OFFICE OF LUCKY T. OSHO, Charlotte, North
Carolina, for Appellant. Robert John Gleason, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Christopher Scott Thompson pled guilty to three counts of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000), and one count of receipt of firearms
while under indictment, in violation of 18 U.S.C. § 922(n) (2000).
He was sentenced to eighty-seven months in prison for each
§ 922(g)(1) offense and sixty months in prison for the § 922(n)
offense. The sentences run concurrently. He now appeals. The
United States has moved to dismiss the appeal, based on Thompson’s
waiver of his appellate rights. Thompson opposes the motion. We
find that the appeal waiver is valid and enforceable and the issue
Thompson seeks to raise on appeal lies within the scope of the
waiver. We therefore grant the United States’ motion and dismiss
the appeal.
Thompson signed a written plea agreement containing the
following provision:
Defendant, in exchange for the concessions made by the
United States in this plea agreement, waives all such
rights to contest the conviction and/or the sentence
except for: (1) claims of ineffective assistance of
counsel; (2) prosecutorial misconduct; or (3) the
sentence, but only to the extent defendant contests the
sentence that one or more findings on guideline issues
were inconsistent with the explicit stipulations
contained in any paragraph in the plea agreement filed
herein, or on the basis of an unanticipated issue that
arises during the sentencing hearing and which the
District Judge finds and certifies to be of such an
unusual nature as to require review by the Fourth Circuit
Court of Appeals.
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The plea agreement set forth the maximum sentence that Thompson
faced and made clear that the sentencing guidelines applied.
At Thompson’s arraignment, the district court ascertained
that Thompson was not under the influence of drugs or alcohol. The
court identified the rights that Thompson waived by pleading
guilty, and specifically mentioned waiver of the right to appeal.
Thompson informed the court that he understood the court’s
explanation of the waiver. The court ascertained that Thompson
understood the charges against him, the applicable penalties that
he faced, and that the sentencing guidelines applied. Thompson
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 offenses charged.
The court concluded that Thompson had knowingly and voluntarily
entered his plea, and the court accepted the plea.
Thompson’s probation officer prepared a presentence
report. The base offense level was 22. Two levels were added
because seven firearms were involved, two levels were added because
the offense involved a destructive device, four levels were added
because Thompson possessed a firearm in connection with another
felony offense — manufacturing marijuana, and three levels were
subtracted for acceptance of responsibility. His total offense
level therefore was 27. His criminal history category was III, and
his resulting guideline range was 87-108 months in prison.
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Thompson raised Sixth Amendment objections to the presentence
report under United States v. Booker, 543 U.S. 220 (2005),
complaining particularly about the four-level increase.
At sentencing, the district court ascertained that there
was a factual basis for the plea, and reaffirmed the acceptance of
the plea agreement. The court treated the guidelines as advisory
and sentenced Thompson under 18 U.S.C. § 3553(e) (2000) to eighty-
seven months on each of the § 922(g)(1) convictions and sixty
months on the § 922(n) conviction. The sentences run concurrently.
Thompson appeals, contending that the district court violated the
Sixth Amendment when it increased his offense level by four levels
based upon his possession of a firearm in connection with marijuana
manufacturing. The United States moves to dismiss the appeal,
contending that Thompson 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 Booker. 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 that waiver. Because they were, we
dismissed the appeal. Blick, 408 F.3d at 169-73.
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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, Thompson’s waiver was clearly knowing and
voluntary. Thompson was born in 1967. He had had past experience
with the criminal justice system, and he was 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 Thompson stated that he understood the waiver. The
details of the waiver were clearly set forth in the written plea
agreement.
Thompson’s plea agreement permits him to appeal his
sentence only in extremely limited circumstances which are not
present here. First, the district court has not certified the
Booker issue to this court for review. Second, the judicial
findings that Thompson seeks to contest are not inconsistent with
any paragraph in the plea agreement. Thompson’s claim that his
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sentence violates the Sixth Amendment under Booker thus lies within
the scope of the appellate waiver and, under Blick, the matter is
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
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