UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4208
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY RICHARDSON, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. David A. Faber, Chief
District Judge. (2:05-cr-00008-WCB)
Submitted: September 11, 2006 Decided: October 13, 2006
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Byron Craig Manford, Martinsburg, West Virginia, for Appellant.
Thomas Edward Johnston, United States Attorney, Wheeling, West
Virginia; Thomas Oliver Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Corey Richardson pled guilty to distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (2000), and was
sentenced to 168 months in prison. He now appeals. The United
States moves to dismiss the appeal, based on Richardson’s waiver of
his appellate rights. Richardson opposes the motion. We find that
the appeal waiver is valid and enforceable and the issues
Richardson seeks to raise on appeal lie within the scope of the
waiver. We therefore grant the United States’ motion and dismiss
the appeal.
Richardson signed a written plea agreement containing the
following provision:
Defendant is aware that Title 18, United States Code,
Section 3742 affords a defendant the right to appeal the
sentence imposed. Acknowledging all this, and in
exchange for the concessions heretofore made by the
United States in this plea agreement, Defendant knowingly
and voluntarily waives the right to appeal any sentence
which is within the maximum provided in the statute of
conviction or . . . the manner in which that sentence was
determined on any ground whatever, including those
grounds set forth in Title 18, United States Code,
Section 3742.
The plea agreement set forth the maximum sentence that Richardson
faced and made clear that the sentencing guidelines applied.
Richardson stipulated in the agreement that the relevant conduct
was at least 150 grams, but not more than 500 grams, of cocaine
base.
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At Richardson’s arraignment, the district court
ascertained that Richardson had given up his right to appeal. The
court identified the other rights that Richardson waived by
pleading guilty. The court determined that Richardson understood
the charge against him and the applicable penalty. Richardson
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 accepted the plea.
Richardson’s probation officer then prepared a
presentence report. The base offense level was 34. Three levels
were subtracted for acceptance of responsibility. The total
offense level therefore was 31. Richardson’s criminal history
category was IV, and his resulting advisory guideline range was
151-188 months in prison. Richardson objected to the calculation
of his criminal history category and argued that a sentence of 135
months in prison would satisfy the considerations set forth at 18
U.S.C.A. § 3553(a)(West 2000 & Supp. 2006).
The district court imposed a sentence of 168 months.
Richardson appeals, contending that the presentence report
overstated his criminal history and that the sentence is excessive.
The United States moves to dismiss the appeal, arguing that
Richardson validly waived his right to appeal. Richardson opposes
the motion.
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This case is governed by our 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. After
deciding that it was, we considered whether the issues raised on
appeal were within the scope of that motion. Because they were, we
dismissed the appeal. Blick, 408 F.3d at 169-73.
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, Richardson’s waiver was clearly knowing and
voluntary. He was born in 1979 and had rather extensive past
experience with the criminal justice system. The waiver-of-
appellate-rights provision was specifically addressed at
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arraignment. The details of the waiver were clearly set forth in
the written plea agreement. Finally, Richardson represented to the
court that his plea was freely, knowingly, and voluntarily
entered.*
While Richardson’s plea agreement prohibits an appeal of
his sentence, it is his sentence that he seeks to attack on appeal.
The appellate issues lie within the scope of the waiver and, under
Blick, they are 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
*
We are not persuaded by Richardson’s argument that his plea
was involuntary because he was coerced into stipulating relevant
conduct. He presents no corroboration of this claim, which he
raised for the first time at sentencing. Further, this claim is at
odds with his solemn, sworn statements at arraignment that his plea
was voluntary.
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