UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY WELLS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00032-3; 3:06-cr-00045)
Submitted: September 28, 2007 Decided: October 15, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Tony Wells pled guilty to
conspiracy to manufacture and to possess with intent to distribute
methamphetamine. Pursuant to a second plea agreement, Wells
subsequently pled guilty to witness tampering. Wells received
concurrent 235-month sentences. He appeals, arguing that his
guilty pleas were unknowing and involuntary and his sentence
unreasonable. The United States responds that because Wells
validly waived his right to appeal, we should enforce the waiver
and dismiss the appeal. We conclude that Wells validly waived his
appellate rights, and we dismiss the appeal.
I
Wells signed written plea agreements that clearly set
forth in separate paragraphs the terms of his appellate waiver. In
each agreement, Wells waived his right to appeal his conviction and
sentence, reserving the right to raise any of the following claims
on appeal: counsel was ineffective; there was prosecutorial
misconduct; an unanticipated issue arose at sentencing that the
district court certified as requiring review by this court; and a
finding on a guideline issue was inconsistent with explicit
stipulations in the plea agreement. At each arraignment, the
prosecutor summarized the pertinent plea agreement and explicitly
mentioned the waiver provision. When questioned, Wells in each
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case informed the court that the summary was accurate. The court
in each case also inquired of Wells whether he had waived his right
to appeal, and Wells replied that he had.
The district court sentenced Wells to concurrent 235-
month sentences. This appeal followed.
II
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
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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, Wells’ waivers were clearly knowing and voluntary.
Wells was born in 1966 and had rather extensive experience with the
criminal justice system. The waiver-of-appellate-rights provision
was specifically addressed at each arraignment, and each plea
agreement clearly set forth the details of the waiver.*
Wells contends on appeal that his sentence is
unreasonable because he was not awarded a variance or downward
departure from his properly calculated advisory guideline range.
He states that he was entitled to a departure or variance because:
he was debriefed and available to testify following his indictment
for witness tampering; he was entitled to but did not receive a
reduction in his offense level based on acceptance of
responsibility; he voluntarily disclosed that he had manufactured
methamphetamine in a residence where minors were present; he had
completed a substance abuse program; he had been baptized; and
family members had serious medical problems requiring his
*
We reject Wells’ claim that, with respect to the witness
tampering charge, his plea was involuntary because the Government
gave nothing in return for the plea. First, Wells cites no case
law in support of the proposition that a guilty plea is void for
lack of consideration. In any event, we note that, in the plea
agreement, the Government promised that “Nothing that the defendant
discloses pursuant to this Plea Agreement will be used against him
in any other criminal proceeding, subject to [certain exceptions].”
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attention. These issues lie within the scope of the waiver and,
under Blick, they are not reviewable on appeal.
We therefore dismiss the appeal. We also deny Wells’
motion to authorize preparation of a transcript at government
expense and for production of documents. 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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