UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEE HOPE THRASHER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:04-cr-00148-RBS)
Submitted: October 23, 2008 Decided: November 24, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Craig W. Sampson, BARNES & DIEHL, P.C., Chesterfield, Virginia, for
Appellant. Robert Joseph Seidel, Jr., Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lee Hope Thrasher appeals her convictions and 180-month
sentence after pleading guilty to conspiracy to commit mail and
wire fraud, in violation of 18 U.S.C. § 317 (2000), and two counts
of wire fraud, in violation of 18 U.S.C. § 1343 (2000). Counsel
for Thrasher filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which he asserts that there are no meritorious
issues for appeal, but asks this court to review whether: (1) the
district court erred in applying the Sentencing Guidelines; (2) a
“Corporation Sole” qualifies as a religious institution protected
under the First Amendment; (3) trial counsel was ineffective in
failing to call witnesses and present additional arguments at
sentencing; (4) the sentence imposed was unreasonable; (5) the
presentence report improperly contained allegations of money
laundering and information not included in the Statement of Facts;
(6) the restitution order and loss amount calculations were
improperly inflated; and (7) the district court erred in denying
co-defendant Howard Welsh’s motion to continue the sentencing
hearing. Thrasher filed a pro se supplemental brief, in which she
asserted that: (1) her plea was unknowing and involuntary due to
ineffective assistance by trial counsel; (2) the use of the 2006
Sentencing Guidelines constituted an Ex Post Facto violation; and
(3) the district court erred in imposing multiple sentencing
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enhancements. The Government has filed a motion to dismiss based
upon the waiver of appellate rights in Thrasher’s plea agreement.
Pursuant to a plea agreement, a defendant may waive her
appellate rights under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990) (waiver upheld as
voluntarily and intelligently made). Whether a defendant has
waived her right to appeal is an issue of law subject to de novo
review. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
A waiver will preclude appeal of a specific issue if the record
establishes that the waiver is valid and that the issue is within
the scope of that waiver. United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994). The validity of a waiver depends on
whether the defendant knowingly and intelligently agreed to waive
the right to appeal. Id. at 732. This determination is based on
the totality of the circumstances, including the adequacy of the
plea colloquy and the experience and conduct of the defendant.
United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).
In her pro se supplemental brief, Thrasher claims that
her appellate waiver was invalid and that she entered her guilty
plea only because she received ineffective assistance from her
trial counsel. Neither contention warrants relief. First, there
is no indication in the record that counsel was ineffective, and
Thrasher fails to identify any such evidence. Accordingly, because
the record does not conclusively establish ineffective assistance,
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Thrasher’s assertions regarding her counsel’s performance,
including her claims that counsel advised her to plead guilty
without properly investigating a number of available defenses and
failed to present relevant evidence and testimony at sentencing,
must be raised in a 28 U.S.C. § 2255 (2000) motion rather than on
direct appeal. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997); United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991).
Nor is there evidence in the record indicating that
Thrasher did not knowingly, intelligently, and voluntarily enter
into her plea and agree to waive her right to appeal. During the
plea hearing, the district court properly informed Thrasher of the
rights she was forfeiting and the nature of the charges and
penalties she faced, determined that Thrasher was competent and
entering her plea voluntarily, and found there was a sufficient
factual basis for the plea. Furthermore, Thrasher stated that she
had fully discussed the case and all possible defenses with her
attorney, and that she was satisfied with his representation.
Finally, the district court noted the appeal waiver contained in
her plea agreement. Despite Thrasher’s present contention that her
plea was involuntary, her sworn statements at the Rule 11 hearing
are presumed to be true. See Blackledge v. Allison, 431 U.S. 63,
73-74 (1977). Accordingly, because there is no evidence that
Thrasher’s plea was not knowing and voluntary, we find that the
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appeal waiver included in her plea agreement is valid. See Blick,
408 F.3d at 169.
In her Anders and pro se briefs, Thrasher contends there
were numerous errors relating to her sentence and restitution
order. However, these claims are squarely within the scope of the
appellate waiver,* as Thrasher waived the right to appeal “any
sentence within the statutory maximum . . . or the manner in which
that sentence was determined . . . on any ground whatsoever.” See
Attar, 38 F.3d at 731-33. Thrasher also asserts that a
“Corporation Sole” qualifies as a religious institution that
deserves protection under the First Amendment; however, this vague
and unsupported claim relates directly to the basis for her
conviction, which also falls within the scope of the appellate
waiver. See Blick, 408 F.3d at 171-72; Tollett v. Henderson, 411
U.S. 258, 266-67 (1973).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
Accordingly, as to Thrasher’s contentions that she received
ineffective assistance of counsel and that her plea was
involuntary, we deny the Government’s motion to dismiss as to those
*
While Thrasher contends that the total amount listed in her
restitution order was erroneously calculated, she has made no
showing that the imposition of restitution in this case was illegal
or unauthorized. See United States v. Broughton-Jones, 71 F.3d
1143, 1146-47 (4th Cir. 1995). Accordingly, the restitution order
falls within the scope of Thrasher’s appeal waiver. See United
States v. Cohen, 459 F.3d 490, 497 (4th Cir. 2006).
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claims, but nonetheless affirm the district court’s judgment. We
grant the Government’s motion to dismiss as to Thrasher’s remaining
claims regarding the validity of her convictions and sentence.
This court requires counsel inform his client, in
writing, of her right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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 IN PART;
AFFIRMED IN PART
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