United States v. Ryan

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4400

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DONALD EMANUEL RYAN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:04-cr-00114-WDQ)

Submitted: November 20, 2006 Decided: December 11, 2006

Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David R. Solomon, GLASER & SOLOMON, LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Donald Emanuel Ryan pled guilty, pursuant to a plea

agreement, to one count of conspiracy to import cocaine, in

violation of 21 U.S.C. § 963 (2000). The district court sentenced

Ryan to 188 months’ imprisonment. On appeal, Ryan argues that the

district court erred in denying his requests for downward departure

based upon the hardship to his family, and upon the disparity of

sentencing compared to his co-defendant.

The Government asserts that Ryan validly waived the right

to appeal his sentence in the plea agreement. A defendant may

waive the right to appeal if that waiver is knowing and

intelligent. United States v. Blick, 408 F.3d 162, 169 (4th Cir.

2005). To determine whether a waiver is knowing and intelligent,

this court examines the background, experience, and conduct of the

defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th Cir. 1995). Generally, if the district court fully questions

a defendant regarding the waiver of her right to appeal during the

Fed. R. Crim. P. 11 colloquy, the waiver is both valid and

enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th

Cir.), cert. denied, 126 S. Ct. 461 (2005); United States v.

Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). However, an appeal

waiver does not preclude challenges to a sentence on the ground

that it exceeds the statutory maximum or is based on a

constitutionally impermissible factor such as race, appeals from

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the denial of a motion to withdraw a guilty plea based on

ineffective assistance of counsel, or claims concerning a violation

of the Sixth Amendment right to counsel in proceedings following

the guilty plea. Johnson, 410 F.3d at 151 (citations omitted).

The question of whether a defendant validly waived her right to

appeal is a question of law that this court reviews de novo.

Blick, 408 F.3d at 168.

Our review of the record leads us to conclude that Ryan

knowingly and voluntarily waived the right to appeal his sentence.

See Blick, 408 F.3d at 169. Moreover, the challenges Ryan raises

on appeal fall within the scope of the waiver.

Accordingly, we dismiss Ryan’s 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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