UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4497
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD STUART ROSE, a/k/a Rahking,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-444)
Submitted: January 31, 2006 Decided: May 15, 2006
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Charles D. Lewis,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, S. Davis
Schiller, Assistant United Sates Attorneys, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald Stuart Rose pled guilty to one count of possession
with intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000), and was sentenced to 262
months in prison. Rose now appeals, arguing that his waiver of his
appeal rights is not enforceable and that his sentence violates the
rule of Blakely v. Washington, 542 U.S. 296 (2004). The United
States moves to dismiss the appeal based on the waiver. We find
the waiver enforceable, grant the Government’s motion, and dismiss
the appeal.
I
Rose signed a written plea agreement containing the
following provision:
The defendant also understands that Title 18, United
States Code, Section 3742 affords a defendant the right
to appeal the sentence imposed. Nonetheless, the
defendant knowingly waives the right to appeal the
conviction and any sentence within the maximum provided
in the statute of conviction (or the manner in which that
sentence was determined) on the grounds set forth in
Title 18, United States Code, Section 3742 or on any
ground whatsoever, in exchange for the concessions made
by the United States in this plea agreement.
The plea agreement set forth the maximum sentence that Rose faced
and made clear that the sentencing guidelines applied and that the
court would apply a sentence within those guidelines. Rose
admitted that he was guilty of the offense charged and that a
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Statement of Facts filed with the plea agreement accurately set
forth the facts of the offense.
Rose signed the agreement. By signing, Rose acknowledged
that he had read the agreement and reviewed it with his lawyer.
Further, Rose stated that he understood his rights with respect to
the indictment and the sentencing guidelines. Finally, he stated
that he understood the agreement and voluntarily agreed to it.
At arraignment, the district court ascertained that Rose
was thirty-six years old and a had a tenth-grade education. The
court identified the rights that Rose waived by going to trial.
The court specifically mentioned that, in the plea agreement, Rose
waived his right to appeal any guideline sentence. The court then
asked Rose: “According to the plea agreement you have agreed to
waive your right to appeal my guideline sentence if it falls within
the limits called for by the guidelines?” J.A. 21. Rose answered
that he had so agreed, and the government did not object to the
court’s description of the appellate waiver. The district court
concluded that Rose knowingly and voluntarily entered the plea and
adjudged him guilty.
At sentencing, the district court adopted the presentence
report, which calculated that Rose’s offense level was 34 and his
criminal history category was VI, for a resulting guideline range
of 262-327 months. The court sentenced Rose to 262 months in
prison. This appeal followed.
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II
Rose contends that the appeal waiver in the plea
agreement is not enforceable. 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, 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. Having decided that it was, we asked whether the
issues raised on appeal were within the scope of that motion. Id.
They were, and the appeal was subject to dismissal. Id. at 173.
We review 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, Rose’s waiver was clearly knowing and voluntary.
He was thirty-six and had a tenth-grade education. The district
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judge questioned him about the waiver of his appellate rights, and
Rose acknowledged that he had waived his right to appeal his
sentence. The details of the waiver were clearly set forth in the
written plea agreement, which Rose had read, discussed with his
attorney, and understood.
Further, the issue that Rose seeks to raise--that his
sentence violates the rule announced in Blakely--is an issue that
is clearly related to the manner in which his sentence was
determined. As such, and because the sentence imposed lies within
the statutory maximum to which Rose was exposed, we conclude that
his waiver of his appeal rights lies within the scope of the
waiver. Under Blick, the matter is not reviewable on appeal.
Rose argues that the government’s silence in response to
the court’s assertion that Rose agreed to waive his right to appeal
his sentence “if it falls within the limits called for by the
guidelines” effected a modification of the plea agreement. This
court has held that where a district court’s mischaracterization of
a material term is sufficiently pervasive to alter a defendant’s
understanding of the terms of his plea, the Government’s
affirmative acquiescence in the court’s explanation can serve to
modify the terms of the plea agreement. United States v. Wood, 378
F.3d 342, 349 (4th Cir. 2004). Although the government did not
object when the district court mischaracterized the waiver
provision in this case, it said nothing to suggest that the court’s
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statement of Rose’s appellate rights was accurate. Absent evidence
of the government’s affirmative acquiescence in the court’s mistake
(or any other facts in the record to support Rose’s modification
argument), we cannot conclude that his plea agreement was modified.
We therefore 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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