UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
and
TAMMIE JEAN LESTER,
Claimant,
versus
JAMES ROBERT ESTEP,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-56)
Submitted: August 25, 2006 Decided: September 11, 2006
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Christine Madeleine Spurell, Abingdon, Virginia, for Appellant.
John L. Brownlee, United States Attorney, Jennifer R. Bockhorst,
Assistant United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
James Robert Estep pled guilty pursuant to a written plea
agreement to one count of Social Security fraud, one count of
conspiracy to commit wire fraud, and one count of conspiracy to
launder money, in violation of 18 U.S.C. §§ 371, 1956(h); 42 U.S.C.
§ 408(a)(4) (2000). Estep was sentenced to forty-eight months’
imprisonment. We grant the Government’s motion to dismiss the
appeal.
On appeal, Estep contends the district court erred in its
application of the sentencing guidelines. The Government, however,
asserts this claim is precluded by the waiver of appellate rights
in Estep’s plea agreement, according to which he waived his right
to “appeal any sentencing guidelines factors or the Court’s
application of the sentencing guidelines factors to the facts of
[his] case.” Estep further agreed that he was “knowingly and
voluntarily waiving any right to appeal sentencing guidelines
factors, and [that he was] voluntarily willing to rely on the Court
in sentencing [him] under the Sentencing Guidelines.”
Additionally, Estep waived his right to collaterally attack his
conviction pursuant to 28 U.S.C. § 2255 (2000).
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether a defendant has
effectively waived the right to appeal is an issue of law we review
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de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). An appeal waiver is valid if the defendant knowingly and
intelligently agreed to waive his right to appeal. Id. at 169.
However, “[a]n appeal waiver is not knowingly or voluntarily made
if the district court fails to specifically question the defendant
concerning the waiver provision of the plea agreement during the
[Fed. R. Crim. P.] 11 colloquy and the record indicates that the
defendant did not otherwise understand the full significance of the
waiver.” United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005) (internal quotations omitted).
The language in the plea agreement is clear and
unambiguous. At the Rule 11 hearing, it was established that Estep
was fifty-six years old, had completed the twelfth grade, and could
read and write. He did not have a history of mental illness or
substance abuse. Estep confirmed he had not only signed the plea
agreement, but had also initialed each page after reading it. He
further acknowledged that he had discussed the agreement with his
counsel prior to signing. The district court specifically
questioned Estep regarding the appeal waiver, and Estep responded
that he understood its effects. Therefore, we conclude the appeal
waiver is both valid and enforceable.
Estep, however, also contends the Government breached the
plea agreement when it failed to call witnesses at sentencing. He
relies on that portion of the plea agreement which states: “I
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understand that I will have an opportunity at the sentencing
hearing to bring witnesses, to cross-examine the government's
witnesses, and to demonstrate to the Court what an appropriate
sentence would be under the Guidelines.” Though Estep argues this
statement created an obligation on the part of the Government to
call witnesses and present evidence, we conclude that it does not.
Therefore, because Estep’s challenge to the district court’s
application of the sentencing guidelines clearly falls within the
scope of the waiver, and the Government did not breach the
agreement, we conclude the terms of the plea agreement should be
enforced.
Accordingly, we grant the Government’s 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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