UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIM JENKINS BRANDVEEN,
Defendant - Appellant.
No. 12-6185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIM JENKINS BRANDVEEN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00149-HEH-1)
Submitted: June 28, 2012 Decided: August 15, 2012
Before SHEDD, KEENAN, and DIAZ, Circuit Judges.
No. 12-4014 affirmed; No. 12-6185 dismissed by unpublished per
curiam opinion.
Vaughan C. Jones, JOHNSON & JONES, LLP, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael C.
Moore, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kim Jenkins Brandveen pleaded guilty pursuant to a
written plea agreement to tax evasion, in violation of 26 U.S.C.
§ 7201 (2006). The district court sentenced Brandveen to five
years’ imprisonment and three years’ supervised release. The
district court also ordered Brandveen to pay the Internal
Revenue Service $2,122,897.82 in restitution. Brandveen timely
appeals the criminal judgment and the restitution order.
Brandveen challenges the district court’s denial of
her motion to withdraw her guilty plea and the amount of
restitution ordered. For the reasons that follow, we conclude
that the district court did not abuse its discretion in denying
Brandveen’s motion to withdraw her guilty plea, and thus we
affirm the criminal judgment. And, because we agree with the
Government that Brandveen’s appeal of the restitution order is
foreclosed by the valid appeal waiver set forth in her plea
agreement, we dismiss her appeal of that order.
I.
We first consider whether the district court abused
its discretion in denying Brandveen’s motion to withdraw her
guilty plea. Brandveen argues that her attorney, a federal
public defender, employed abusive and coercive tactics to induce
Brandveen to plead guilty, and thus that her guilty plea was
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involuntary. The district court rejected this contention after
conducting a thorough hearing on the motion.
“A defendant has no absolute right to withdraw a
guilty plea.” United States v. Bowman, 348 F.3d 408, 413 (4th
Cir. 2003) (internal quotation marks omitted). Once the
district court has accepted a defendant’s guilty plea, it is
within the court’s discretion whether to grant a motion to
withdraw it. United States v. Battle, 499 F.3d 315, 319 (4th
Cir. 2007). This Court closely scrutinizes the Fed. R. Crim. P.
11 colloquy and, if properly conducted, “a strong presumption
that the plea is final and binding” attaches. United States v.
Nicholson, 676 F.3d 376, 384 (4th Cir. 2012) (internal quotation
marks omitted).
Brandveen acknowledges that her claim of coercion is
entirely inconsistent with her assertions, under oath, at the
Rule 11 hearing, which are presumed to be truthful. See United
States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005)
(explaining that, absent compelling evidence to the contrary,
“the truth of sworn statements made during a Rule 11 colloquy is
conclusively established”). The district court conducted a
comprehensive Rule 11 hearing in this case, taking care to
ensure that Brandveen was knowingly and voluntarily agreeing to
plead guilty. The court offered Brandveen many opportunities to
report her attorney’s allegedly coercive behavior, but she did
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not avail herself of those chances. Although Brandveen implores
us to look “beyond the spoken words of the hearing” (Appellant’s
Br. at 12), we will not do so as “courts must be able to rely on
the defendant’s statements made under oath during a properly
conducted Rule 11 plea colloquy.” LeMaster, 403 F.3d at 221.
We therefore presume that Brandveen’s guilty plea is “valid and
binding.” Nicholson, 676 F.3d at 384.
The inquiry then becomes whether Brandveen established
a “fair and just” reason for withdrawing the plea. Id.; see
Fed. R. Crim. P. 11(d)(2)(B). To aid in this analysis, this
Court has announced a six-factor test. See United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). Under Moore, a
district court considers:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
Id. Although all of the Moore factors should be considered, the
critical factor is whether the plea was knowing and voluntary,
which again hinges on the Rule 11 colloquy. United States v.
Faris, 388 F.3d 452, 456 (4th Cir. 2004), vacated on other
grounds, 544 U.S. 916 (2005). We review a district court’s
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denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th
Cir. 2000).
We have thoroughly reviewed the record in this case,
including the transcripts of the Rule 11 hearing and the hearing
on Brandveen’s motion to withdraw her guilty plea. We discern
no abuse of discretion in the court’s weighing of the Moore
factors or the resulting denial of Brandveen’s motion to
withdraw her guilty plea. We thus affirm the criminal judgment.
II.
Brandveen next contends that the district court
erroneously calculated the restitution amount by including
losses outside the offense of conviction. In response, the
Government asserts that Brandveen waived appellate review of the
restitution order through the waiver of her right to appeal “any
sentence within the statutory maximum . . . on the grounds set
forth in [18 U.S.C. § 3742 (2006)] or on any ground whatsoever.”
(J.A. 74). * We agree.
A defendant may, in a valid plea agreement, waive the
right to appeal her sentence under 18 U.S.C. § 3742. United
*
Citations to the “J.A.” refer to the joint appendix
submitted by the parties.
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States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This Court
reviews the validity of an appellate waiver de novo, and will
enforce the waiver if it is valid and the issue appealed is
within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to it. Id. at 169. To determine
whether a waiver is knowing and intelligent, this Court examines
the background, experience, and conduct of the defendant.
United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995). “An appeal waiver is not knowingly or voluntarily made
if the district court fails to specifically question the
defendant concerning the waiver provision . . . during the Rule
11 colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver.”
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(internal quotation marks omitted). Ultimately, however, the
issue is “evaluated by reference to the totality of the
circumstances.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002).
The totality of circumstances in this case clearly
demonstrates that Brandveen validly waived her right to appeal
her sentence. As previously discussed, Brandveen’s guilty plea
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was voluntary, and there is no doubt that Brandveen knowingly
agreed to plead guilty, with a full understanding of the terms
of the appeal waiver. The language of the plea agreement is
clear and unambiguous, and the district court questioned
Brandveen to ensure that she had read and understood the plea
agreement prior to signing it. The court also discussed the
scope of the appeal waiver with Brandveen. We thus hold that
the waiver is valid and enforceable as it was knowingly and
voluntarily accepted. See Blick, 408 F.3d at 169.
The final issue, then, is whether the argument raised
on appeal falls within the scope of the waiver. Brandveen
acknowledges that the district court had statutory authority to
order restitution, but posits that the court exceeded that
authority by ordering restitution in an amount that encompassed
conduct beyond the offense of conviction.
While framed in terms of the court’s authority, at its
core, Brandveen’s argument attacks the district court’s fact-
based determination as to which losses should be included as
part of the “offense of conviction.” Because Brandveen’s
challenge to what should be included in determining the loss
amount does not implicate the court’s statutory authority to
order restitution, we hold that the asserted error squarely
falls within the scope of the appeal waiver. See United States
v. Cohen, 459 F.3d 490, 498-500 (4th Cir. 2006) (rejecting
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defendant’s attempt to restrict the scope of the “offense of
conviction” to those acts “specifically defined by the factual
basis of his plea contained in the plea agreement” and holding
that, because the restitution award was within the scope of the
district court’s authority, the appellate challenge to the
amount of that award was within the ambit of the appeal waiver
(internal quotation marks omitted)). We therefore dismiss the
appeal of this issue.
For the foregoing reasons, we affirm the criminal
judgment and we dismiss the appeal of the restitution order. 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.
No. 12-4014 AFFIRMED
No. 12-6185 DISMISSED
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