CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4660
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD P. JACKMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:07-cr-00041-RWT)
Submitted: February 27, 2008 Decided: March 11, 2008
Corrected Opinion Filed: May 20, 2008
Before TRAXLER and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney, Daniel W. Stiller, Assistant Federal Public Defender,
Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Michele W. Sartori, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant Richard P. Jackman contends the district court
erred in limiting his access to computers as a special condition of
supervised release. Because Jackman entered into a valid waiver of
his appellate rights that explicitly covered supervised release, we
dismiss the appeal.
Jackman pleaded guilty to one count of transporting child
pornography, in violation of 18 U.S.C. § 2252A(a)(1) (2000). In
his plea agreement, Jackman agreed to “knowingly and expressly
waive all rights conferred by 18 U.S.C. § 3742 to appeal whatever
sentence is imposed, including any fine, term of supervised
release, or order of restitution.” The waiver provision contained
two explicit exceptions: Jackman retained the right to appeal an
upward departure or variance from the guidelines range, and the
right to appeal a sentence above the statutory maximum.
The court imposed a sentence of 180 months’ imprisonment
and a twenty-five year term of supervised release. As a special
condition of supervised release, the court ordered that Jackman
have limited access to computers, as follows:
he [is] prohibited from possessing or using any kind of
computers, except with the permission of the probation
officer. I will authorize the use of a computer in
connection with authorized employment. But, if he uses
a computer, either with the permission of the probation
officer, or in connection with authorized employment, he
will be required to consent to the installation on any
such computer of computer monitoring software.
3
Jackman contends this condition of supervised release is
invalid because it imposes a greater deprivation of liberty than
necessary, vests the probation officer with complete discretion,
and is insufficiently narrowly tailored. The Government responds
that the special condition of supervised release is reasonable and
valid and Jackman’s appeal is barred by his appellate waiver.
This court reviews the validity of a waiver de novo,
United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000), and
will uphold a waiver of appellate rights if the waiver is valid and
the issue being appealed is covered by the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). 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 a district court fully questions a defendant
regarding his waiver of appellate rights during the Fed. R. Crim.
P. 11 colloquy, the waiver is valid. Wessells, 936 F.2d at 167-68.
In this case, the district court thoroughly reviewed the
appeal waiver during the Rule 11 colloquy. Jackman acknowledged
that he understood that, apart from the two exceptions outlined in
the plea agreement, he waived his right to appeal. Thus, Jackman’s
agreement to the waiver was knowing and voluntary.
The agreement provided that Jackman “knowingly and
expressly waive[d] all rights conferred by 18 U.S.C. § 3742 to
4
appeal whatever sentence is imposed, including any fine, term of
supervised release, or order of restitution.” Because the waiver
in the plea agreement precludes consideration of the claims he
seeks to raise on appeal, we dismiss Jackman’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
*
Jackman contends that the conditions of supervised release
are not encompassed by the appeal waiver because he waived the
right to appeal his sentence only insofar as it resulted from a
base offense level of thirty-three. We reject this argument.
Jackman ignores the broad waiver of appellate rights contained in
the first sentence of the appeal waiver and relies on language
following that waiver that merely explains the exception to the
waiver allowing him to appeal an upward departure from the advisory
guidelines range.
5