UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4741
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VAN SON THAI, a/k/a Son Tau, a/k/a Thai Son,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:09-cr-00408-AJT-2)
Submitted: March 24, 2011 Decided: March 31, 2011
Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for
Appellant. Kimberly Riley Pederson, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Van Son Thai pled guilty, pursuant to a written plea
agreement, to one count of conspiracy to affect commerce by
robbery, in violation of 18 U.S.C. § 1951 (2006), and one count
of use of firearms during a crime of violence, in violation of
18 U.S.C. § 924(c) (2006). The district court sentenced Thai to
120 months’ imprisonment, which consisted of thirty-six months
on the conspiracy count and eighty-four months on the firearms
count, running consecutively. Thai timely appealed. On appeal,
Thai first argues that count one of the superseding indictment
failed to allege sufficient facts to establish federal
jurisdiction and accordingly should have been dismissed. Thai
also argues that the district court erred at sentencing because
it considered two additional robberies not identified in the
statement of facts and because the court failed to find that
Thai had committed the two additional robberies beyond a
reasonable doubt. In response, the Government filed a motion to
dismiss, relying on Thai’s appeal waiver. We agree with the
Government’s position and dismiss Thai’s appeal.
It is well-settled that “a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C.
§ 3742.” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). “Whether a defendant has effectively waived the right to
appeal is an issue of law that [this court] review[s] de novo.”
2
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). In
undertaking that review, this court will enforce an appellate
waiver where such a waiver “is knowing and intelligent and the
issue sought to be appealed falls within the scope of the appeal
waiver.” United States v. Poindexter, 492 F.3d 263, 270 (4th
Cir. 2007). An appellate waiver is generally considered to be
knowing and intelligent where the court specifically questioned
the defendant regarding the waiver during the Rule 11 colloquy
and the record indicates that the defendant understood the
significance of the waiver. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). Our review of the record leads us to
conclude that Thai knowingly and voluntarily waived the right to
appeal his conviction and sentence.
Only a “narrow class of claims involves errors that
the defendant could not have reasonably contemplated when the
plea agreement was executed,” and therefore are excluded from
the scope of the waiver. Poindexter, 492 F.3d at 270 (internal
quotation marks omitted). For example, claims that proceedings
following the guilty plea were conducted in violation of the
defendant’s Sixth Amendment right to counsel, United States v.
Attar, 38 F.3d 727, 732-33 (4th Cir. 1994), or that a sentence
was imposed in excess of the statutory maximum penalty “or based
on a constitutionally impermissible factor such as race,” United
3
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), fall within
the narrow category of claims excluded from an appellate waiver.
Thai first argues that count one of the superseding
indictment failed to allege sufficient facts to establish
federal jurisdiction, and thus, the district court lacked
subject matter jurisdiction. Because subject matter
jurisdiction involves the power of a court to hear a case,
claims that a court lacked jurisdiction are not barred by an
appellate waiver. See United States v. Cotton, 535 U.S. 625,
630 (2002) (subject matter jurisdiction cannot be forfeited or
waived). However, the Supreme Court also established in Cotton
that a defective indictment does not deprive a court of
jurisdiction. Id. at 631. Thus, Thai’s claim is not
jurisdictional, but “goes only to the merits of the case,” and
is therefore barred by his appeal waiver. Id. (quoting Lamar v.
United States, 240 U.S. 60, 65 (1916)).
Thai’s second claim, that the district court erred in
imposing his sentence, does not rise to the level of a
“reasonably unforeseeable” constitutional violation, but rather
constitutes a routine challenge to the procedural reasonableness
of his sentence. Therefore, this claim falls squarely within
the scope of the appellate waiver. Accordingly we grant the
Government’s motion to dismiss. We dispense with oral argument
because the facts and legal contentions are adequately presented
4
in the materials before the court and argument would not aid the
decisional process.
DISMISSED
5