UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY LEE FLECK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:04-cr-00491-AMD)
Submitted: March 19, 2009 Decided: April 7, 2009
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald Kaplan, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Harry Mason Gruber, Andrew
George Warrens Norman, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Lee Fleck appeals his convictions for sexually
exploiting minors and attempting to transport sexually explicit
images of minors and his resulting 168-month sentence. On
appeal, his counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding that there are no
meritorious issues for appeal but raising claims of ineffective
assistance of counsel, voided guilty plea, and improper
sentence. Fleck has filed a pro se supplemental brief,
rearguing the ineffective assistance claim and challenging the
denial of his motion to suppress and the validity of his guilty
plea. We affirm. *
Counsel raises the issue of ineffective assistance of
counsel but does not direct the court’s attention to any
specific portion of the proceeding. In his pro se supplemental
brief, Fleck asserts that counsel withdrew a challenge to the
number of victims for sentencing purposes without his consent
and that his attorney pushed him into pleading guilty without
properly explaining the plea. On direct appeal, we may address
a claim that counsel was ineffective only if the ineffectiveness
*
There is some confusion in the record as to the scope of
Fleck’s waiver of appellate rights in his plea agreement.
However, since the Government has not filed a motion to dismiss
based upon the waiver, we will consider the merits of Fleck’s
appeal.
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appears conclusively on the face of the record. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). In
this case, there is no conclusive indication from the record
that Fleck’s counsel was ineffective. Accordingly, this claim
is without merit.
Fleck next asserts that, because his waiver of
appellate rights was not knowing or intelligent, his guilty plea
and plea agreement were void. While a mistake as to an
essential element of a plea agreement can invalidate the
agreement, an appellate waiver is not an essential element. See
United States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996)
(listing essential elements). Even were we to invalidate the
waiver itself (which is an irrelevant issue since we are not
enforcing the waiver due to the Government’s failure to raise
it), permitting an appeal would not require voiding the plea
agreement and conviction. See United States v.
Quirindongo-Collazo, 213 F. App’x 10, 13 (1st Cir. 2007)
(voiding waiver and remanding for resentencing but affirming
conviction); United States v. Rodriguez-Castillo, 147 F. App’x
406, 407-08 (5th Cir. 2005) (finding appellate waiver partially
involuntary but affirming sentence and conviction).
Accordingly, any confusion regarding the waiver does not require
vacating Fleck’s conviction.
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Fleck asserts that the district court’s failure to
state the Guidelines range at sentencing rendered his sentence
unreasonable. However, the Guidelines range was stipulated to
prior to sentencing. In addition, the Government explicitly
outlined the range at sentencing, and Fleck and the district
court proceeded with sentencing based upon that range. We
conclude that Fleck’s claim is frivolous.
In his pro se supplemental brief, Fleck asserts that
his initial stop in the airport which led to his arrest was
improper. Fleck’s motion to suppress was denied by the district
court, and Fleck’s guilty plea did not reserve the right to
challenge this ruling. An unconditional plea of guilty waives
subsequent review of most pretrial issues preceding a voluntary
plea. See United States v. Broce, 488 U.S. 563, 569 (1989);
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).
Accordingly, we may not review the denial of Fleck’s motion to
suppress. See United States v. Bell, 966 F.2d 914, 915-17 (5th
Cir. 1992).
Finally, Fleck contends that his plea was involuntary
because he was “confused” and “pushed by the prosecution
threats.” At the Fed. R. Crim. P. 11 hearing, Fleck stated that
he “wanted to get this over with,” that he was “ready to accept
this,” and that he had no complaints with his attorney. His
counsel informed the court that Fleck was making an intelligent
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and knowing decision to plead guilty but that Fleck was not
happy about it because he felt that the law in question should
not cover his conduct. Fleck stated that he read the plea
agreement, understood it, and reviewed it with his attorney. He
agreed with the Government’s statement of facts, and he conceded
that the Government could prove his guilt regarding each of the
elements of the charges against him.
Fleck’s assertions on appeal are not supported by the
transcript of the Rule 11 hearing. Moreover, they are
conclusory and conflicting. Accordingly, we find that his
statements on appeal are insufficient to call into question his
sworn testimony at the Rule 11 hearing that established his
voluntary and intelligent plea.
We have carefully reviewed the record in this case in
accordance with Anders, and we find no reversible error.
Accordingly, we affirm Fleck’s convictions and sentence. This
court requires that counsel inform his client, in writing, of
his 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.
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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.
AFFIRMED
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