United States v. Thompson

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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