UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEROY BURTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-116-F)
Submitted: August 16, 2006 Decided: September 26, 2006
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas Peter McNamara, Federal Public Defender, Stephen Clayton
Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leroy Burton pled guilty to conspiracy to commit bank
fraud, in violation of 18 U.S.C. § 371 (2000), and two counts of
aiding and abetting bank fraud, in violation of 18 U.S.C. § 1344
(2000), and was sentenced to a term of 57 months’ imprisonment.
Burton now seeks to appeal his sentence. Because he waived his
right to appeal, we grant the Government’s motion to dismiss and
dismiss the appeal.
This court reviews the validity of a waiver de novo.
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
uphold a waiver of appellate rights if the waiver is valid and the
issue being appealed is within the scope of the waiver. United
States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. Wessells, 936 F.2d at 167-68.
This court determined in United States v. Blick, 408 F.3d
162 (4th Cir. 2005), that a waiver of the right to appeal in a plea
agreement entered into prior to the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), was not invalidated
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by the change in law effectuated by that decision and that the
Booker error fell within the scope of Blick’s generic waiver.
Blick, 408 F.3d at 170, 173 (“[A]t the time he entered the plea
agreement, both Blick and the United States expressly contemplated
and agreed that he would be sentenced in exactly the manner in
which he was, in fact, sentenced: the pre-Booker Guidelines
system.”); see also United States v. Johnson, 410 F.3d 137 (4th
Cir. 2005) (rejecting Johnson’s argument that a defendant cannot
waive the right to an appeal based on subsequent changes in the
law). Burton’s plea agreement similarly expressly contemplated he
would be sentenced in accordance with the Sentencing Guidelines.
Burton’s contention that his claim does not fall within
the scope of the appeal waiver because it concerns an upward
departure is without merit. An upward departure is a sentence that
departs from the applicable sentencing guidelines range. U.S.
Sentencing Guidelines Manual § 5G1.1(A). The district court did
not impose an upward departure in sentencing Burton because it did
not depart from the correctly calculated sentencing guidelines
range.
Further, Burton’s reliance on United States v. Guevara,
941 F.2d 1299 (4th Cir. 1991), to argue that the Government may not
seek to enforce the waiver because it was too one-sided is
misplaced. In Guevara, this court construed a plea agreement that
contained a waiver of the defendant’s right to appeal but was
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silent as to the government’s appeal rights. This court held that
“such a provision against appeals must also be enforced against the
government, which must be held to have implicitly cast its lot with
the district court, as the defendant explicitly did.” Guevara, 941
F.2d at 1299-1300. Burton’s plea agreement is distinguishable
because Burton explicitly waived his right to appeal and the
Government explicitly retained its right to appeal in the plea
agreement.
Finally, Burton does not dispute that his waiver was
knowing and voluntary. The appeal waiver was unambiguous, it was
reviewed by the court, and Burton acknowledged his understanding of
the waiver at the plea hearing. We therefore find the plea waiver
is both valid and enforceable.
Accordingly, we grant the Government’s motion to dismiss
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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