UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4256
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD R. KISER, D.O.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00074-1)
Submitted: March 25, 2009 Decided: April 16, 2009
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Monica K. Schwartz, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald R. Kiser pled guilty, pursuant to a plea
agreement, to conspiracy to distribute oxycodone, hydrocodone,
and alprazolam, in violation of 21 U.S.C. § 846 (2006). Kiser
raises two issues on appeal. First, Kiser argues that the
district court erred by applying a two-level sentence
enhancement, pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.4 (2007), for the use of a minor in the commission of an
offense. Second, Kiser contends that the district court did not
adequately consider the 18 U.S.C. § 3553(a) (2006) sentencing
factors when imposing Kiser’s sentence. As both issues raised
by Kiser on appeal are barred by waiver, we affirm.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 128 S. Ct. 586, 597 (2007). Appellate
courts are charged with reviewing sentences for reasonableness
under an abuse of discretion standard. Id. at 594, 597.
Reasonableness review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Id. at 597.
However, a defendant may waive appellate review of an
alleged error in sentencing if he raises and then knowingly
withdraws an objection to the error. See United States v.
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Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that
defendant’s withdrawal of objection to sentence enhancement
precluded appellate review of enhancement); United States v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (“[A] party who
identifies an issue, and then explicitly withdraws it, has
waived the issue.”). An appellant is precluded from challenging
a waived issue on appeal. See Rodriguez, 311 F.3d at 437.
Here, Kiser explicitly objected to the probation
officer’s application of a two-level enhancement under USSG
§ 3B1.4 for use of a minor in the commission of an offense.
However, Kiser withdrew this objection during his sentencing
hearing in order to receive the benefit of a downward adjustment
for acceptance of responsibility. Thus, Kiser’s withdrawal of
his prior objection amounts to a waiver of this issue, and he is
precluded from challenging it on appeal.
Similarly, the Government contends that Kiser waived
his right to appeal the reasonableness of his sentence in his
plea agreement. Whether a defendant effectively waived his
right to appeal pursuant to a plea bargain is an issue of law
that is reviewed de novo. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005). A waiver will be enforced if the record
shows the waiver is valid and the challenged issue falls within
the scope of the waiver. Id. An appeal waiver is valid if it
is “the result of a knowing and intelligent decision to forego
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the right to appeal.” United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995) (internal quotation marks and
citations omitted). To decide whether a defendant’s waiver
results from a knowing and intelligent decision, we examine
“‘the particular facts and circumstances surrounding that case,
including the background, experience and conduct of the
accused.’” United States v. Davis, 954 F.2d 182, 186 (4th Cir.
1992) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Generally, if the district court fully questions a defendant at
his Fed. R. Crim. P. 11 proceeding regarding the waiver of his
right to appeal, the waiver is both valid and enforceable. See
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Here, Kiser argues that the district court erred in
failing to adequately consider the § 3553(a) factors when
determining Kiser’s sentence – a challenge to the procedural
reasonableness of the sentence. See Gall, 128 S. Ct. at 597.
However, in his plea agreement, Kiser waived his right to appeal
the reasonableness of any sentence imposed by the district court
that fell within the guideline range, reserving the right to
challenge the district court’s guidelines calculations. As this
is not a challenge to the district court’s calculation of the
guideline range, and Kiser’s sentence fell within the guideline
range, Kiser has waived his right to appeal this issue if we
find his waiver valid.
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There is no question that Kiser is an intelligent and
learned individual, capable of understanding his plea agreement
and the waiver contained therein. Moreover, prior to accepting
Kiser’s guilty plea, the district court conducted a thorough
Fed. R. Crim. P. 11 colloquy. The court questioned Kiser
regarding his knowledge of the contents of the plea agreement
and the rights he was waiving by pleading guilty, specifically
his right to appeal the reasonableness of his sentence. The
district court further verified that Kiser’s plea was entered
freely and voluntarily; that he was not suffering from any
emotional or mental illness; and that he was not currently under
the influence of any medicine, drugs, or alcohol. Accordingly,
as it is abundantly clear that Kiser’s appeal waiver was “the
result of a knowing and intelligent decision to forego the right
to appeal,” Broughton-Jones, 71 F.3d at 1146, we find that
Kiser’s appeal waiver is valid and enforceable, and he is barred
from appealing the reasonableness of his sentence.
As Kiser has waived his right to appeal both of the
issues before us, we affirm the judgment of the district court.
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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