UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4737
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEBORAH LEE TIPTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00025-MR-DLH-1)
Submitted: July 22, 2014 Decided: August 5, 2014
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Frank B. Jackson, F.B. JACKSON & ASSOCIATES LAW FIRM, PLLC,
Hendersonville, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Melissa L. Rikard, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Lee Tipton pled guilty to transporting a
visual depiction of a minor engaged in sexually explicit
conduct, in violation of 18 U.S.C. § 2252(a)(1), (b) (2012), and
possessing a visual depiction of a minor engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)
(2012). She was sentenced to a total of 216 months’
imprisonment. On appeal, Tipton argues that her sentence is
unreasonable and that the Government committed prosecutorial
misconduct and breached the plea agreement. Relying on the
waiver of appellate rights in Tipton’s plea agreement, the
Government urges the dismissal of Tipton’s challenge to her
sentence. We affirm in part and dismiss in part.
Tipton first argues that the Government breached the
plea agreement when it relied on conduct underlying a dismissed
charge of production of child pornography in its argument at
sentencing. In making its sentencing determinations, a court is
not limited to the facts constituting the offenses of conviction
but can consider any reliable evidence so long as “‘the
defendant [is] given adequate notice of and an opportunity to
rebut or explain [it].’” United States v. Bowman, 926 F.2d 380,
381 (4th Cir. 1991) (quoting United States v. Beaulieu, 893 F.2d
1177, 1181 (10th Cir. 1990)). Although the plea agreement
required the Government to dismiss the charge of production of
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child pornography, it did not prohibit the Government from using
Tipton’s acts of producing child pornography as part of its
argument at sentencing. See Santobello v. New York, 404 U.S.
257, 262 (1971); United States v. Fentress, 292 F.2d 461, 464
(4th Cir. 1986). Therefore, the Government did not breach the
plea agreement. See United States v. Snow, 234 F.3d 187, 189
(4th Cir. 2000) (stating burden of proof).
Tipton also argues that the Government committed
prosecutorial misconduct by introducing certain evidence at
sentencing and by making certain allegedly inaccurate factual
statements in its argument. “To prevail on a claim of
prosecutorial misconduct, a defendant must show (1) that the
prosecutor’s remarks and conduct were, in fact, improper and (2)
that such remarks or conduct prejudiced the defendant to such an
extent as to deprive the defendant of a fair trial.” United
States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007). Because
Tipton did not raise her claims of prosecutorial misconduct in
the district court, we review those claims for plain error only.
United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005); see
Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013)
(discussing standard of review). Our review of the record
reveals no prejudicial misconduct. Tipton is therefore entitled
to no relief on her prosecutorial misconduct claims.
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Finally, Tipton argues that her sentence is
unreasonable. This claim is barred by the waiver of appellate
rights in her plea agreement. A defendant may waive the right
to appeal if that waiver is knowing and intelligent and the
issues raised on appeal fall within its scope. United States v.
Davis, 689 F.3d 349, 354-55 (4th Cir. 2012). Generally, if the
district court fully questions a defendant regarding the waiver
of her right to appeal during the plea colloquy performed in
accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable. See United States v. Copeland, 707 F.3d 522,
528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013).
After our de novo review of the record, see United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (stating
standard of review), we conclude that Tipton knowingly and
voluntarily waived the right to appeal her sentence on any basis
except ineffective assistance of counsel or prosecutorial
misconduct, and that the magistrate judge fully questioned her
regarding the appeal waiver at the Rule 11 hearing. Therefore,
the waiver is valid, and Tipton is barred from challenging the
reasonableness of her sentence.
Accordingly, we affirm the district court’s judgment
with respect to the claims that the Government breached the plea
agreement and engaged in prosecutorial misconduct, and we
dismiss Tipton’s appeal of her sentence. We dispense with oral
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argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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