UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESSE DORSZ, a/k/a 3D,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:07-cr-00399-JFM-2)
Submitted: October 29, 2010 Decided: November 18, 2010
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, John Walter Sippel, Jr., Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Dorsz appeals his conviction and 210-month
sentence for one count of conspiracy to possess with intent to
distribute 500 grams or more of cocaine in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C) (2006), and one count
of possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. §§ 924(c), 2 (2006). The
Government has moved to dismiss, citing an appellate waiver
contained in Dorsz’s plea agreement. For the reasons that
follow, we deny the motion to dismiss, and we affirm the
district court’s judgment.
Dorsz seeks to raise one issue on appeal: that his
guilty plea was not voluntary. Specifically, he claims that the
Government represented to his counsel that a cooperating witness
would testify that Dorsz murdered David Lee to prevent him from
testifying before a grand jury. After Dorsz pled guilty, his
counsel investigated the murder allegations further and has
represented that the witness would not testify against Dorsz as
the Government claimed. Dorsz argues that had it not been for
the Government’s claim that the witness would testify against
him, he would have pled not guilty and proceeded to trial.
Prior to pleading guilty, Dorsz executed a plea
agreement in which he agreed to waive “all rights conferred by
18 U.S.C. § 3742 [2006] to appeal whatever sentence is imposed,
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including any fine, term of supervised release, or order of
restitution and any issues that relate to the establishment of
the advisory [G]uidelines range[.]”
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742. United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver will
preclude appeal of a specific issue if the waiver is valid and
the issue is within the scope of the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). Whether a defendant
validly waived his right to appeal is a question of law that
this court reviews de novo. Id. at 168. “The validity of an
appeal waiver depends on whether the defendant knowingly and
intelligently agreed to waive the right to appeal.” Id. at 169
(citation omitted).
By its plain terms, the appellate waiver only
encompasses an appeal of Dorsz’s sentence. He does not
challenge his sentence on appeal. Rather, he argues his plea
was invalid. Accordingly, the issue he seeks to raise is
outside the scope of the appellate waiver, so we deny the motion
to dismiss. We have reviewed the record, however, and we
conclude that Dorsz’s claim on appeal is without merit and
further response from the Government is not warranted.
Because Dorsz did not move to withdraw his guilty plea
in the district court, this court reviews for plain error.
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United States v. General, 278 F.3d 389, 393 (4th Cir. 2002);
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).
To demonstrate plain error, a defendant must show that:
(1) there was an error; (2) the error was plain; and (3) the
error affected his “substantial rights.” United States v.
Olano, 507 U.S. 725, 732 (1993). A defendant’s substantial
rights are affected if the court determines that the error
“influenced the defendant’s decision to plead guilty and
impaired his ability to evaluate with eyes open the direct
attendant risks of accepting criminal responsibility.” United
States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal
quotation marks omitted); see also Martinez, 277 F.3d at 532
(holding that a defendant must demonstrate that she would not
have pled guilty but for the error).
Here, Dorsz has not shown that his substantial rights
were affected by any purported error. At sentencing, he
indicated (through counsel) that he was aware that the
Government’s witness would not testify against him, and the
district court afforded him the opportunity to move to withdraw
his guilty plea on that basis. Dorsz repeatedly and
emphatically declined to move to withdraw his plea. He cannot
now claim that he would have pled not guilty had this
information come to light sooner. We conclude that Dorsz’s
claim does not withstand plain error review.
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Accordingly, we deny the motion to dismiss and 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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