UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4759
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
MARY PENLAND,
Party-in-Interest – Appellant,
and
326 HANSA LANE GREER SC; 4318 EAST NORTH STREET; KENNETH C.
ANTHONY, JR.,
Parties-in-Interest,
v.
CHARLES W. PENLAND, SR.,
Defendant – Appellant,
v.
JERRY SAAD,
Receiver.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:05-cr-00710-HFF-1)
Submitted: February 3, 2010 Decided: March 18, 2010
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Mary Penland, Charles W. Penland, Sr., Appellants Pro Se.
Deborah Brereton Barbier, Assistant United States Attorney,
Columbia, South Carolina; Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In March 2006, Charles W. Penland, Sr. (“Penland”),
entered into a plea agreement with the Government, in which he
pled guilty to conspiracy to distribute cocaine and
methamphetamine, in violation of 21 U.S.C. § 846 (2006), and two
other offenses arising from his involvement in a conspiracy to
distribute narcotics. In addition to a negotiated plea of 120
months’ imprisonment, the parties agreed to a substantial
property forfeiture, and the plea agreement itemized the real
property, personal property, business entities, and cash assets
to be forfeited. This appeal stems from the district court’s
July 2009 order directing transfer to the United States of the
seized assets and the assets generated from the sale of the
seized properties.
Penland’s plea agreement contained a broad waiver-of-
rights provision, which included a waiver of Penland’s right to
appeal the forfeiture order. On the same day Penland executed
his plea agreement, his wife, Mary Penland, executed a
“Forfeiture Agreement and Stipulation” (“Stipulation”), in which
she “agreed to settle all right, title and interest [she] may
claim in and to all such properties subject to forfeiture.” In
exchange, the Government agreed to release to Mary Penland four
of the properties identified in the preliminary forfeiture
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order. At the end of the Stipulation, Mary Penland noted “she
ha[d] consulted with counsel and ha[d] been fully advised of her
rights and options in this matter.” The Stipulation was signed
by Mary Penland and her attorney.
Following execution of the plea agreement and
Stipulation, the district court conducted a thorough Fed. R.
Crim. P. 11 hearing and accepted Penland’s guilty plea. At the
end of the plea hearing, the district court questioned Mary
Penland, who informed the court that she understood she was
relinquishing her right and interest in the forfeited property
and that she did so freely.
The district court entered a preliminary forfeiture
order in June 2006. The district court subsequently sentenced
Penland to 120 months’ imprisonment and incorporated the
preliminary forfeiture order into the criminal judgment.
Penland filed a notice of appeal of the criminal judgment. In
January 2007, the district court issued a final forfeiture order
with respect to certain cash assets and vehicles. Penland
subsequently noted his appeal of that order.
Asserting the appellate waiver in Penland’s plea
agreement, the Government moved to dismiss Penland’s appeal of
his convictions and sentence. This court consolidated the two
appeals and granted the Government’s motion to dismiss Penland’s
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appeal of his sentence and the forfeiture order. Although we
denied the motion to dismiss as to Penland’s appeal of his
convictions, we rejected the proffered ineffective assistance of
counsel claim as legally insufficient on the record before us,
and affirmed Penland’s convictions. See United States v.
Penland, Nos. 06-5044, 07-4201, 2007 WL 2985299 (4th Cir. Oct.
15, 2007) (unpublished)
In July 2009, the district court entered a final order
of forfeiture, directing that the proceeds generated from the
sale of the seized properties and the title for any remaining
properties be transferred to the United States. The Penlands
appealed. In response, the Government filed a motion to dismiss
Penland’s appeal, arguing the appellate waiver in Penland’s plea
agreement precludes the appeal.
We grant the Government’s motion and dismiss Penland’s
appeal of the final order of forfeiture because the issues
raised therein have already been decided in the Government’s
favor. In adjudicating Penland’s direct appeal, this court
concluded that Penland’s guilty plea was knowingly and
voluntarily entered and that the waiver-of-rights provision
included appeals of the forfeiture order, and enforced the
waiver against Penland. These findings constitute the law of
the case as to the issue of the voluntariness, scope, and
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enforceability of the waiver, and thus those issues will not be
reconsidered here. United States v. Aramony, 166 F.3d 655, 661
(4th Cir. 1999) (“[T]he doctrine of the law of the case posits
that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages
in the same case.”) (internal quotation marks and alterations
omitted); United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(holding that law of the case doctrine “forecloses relitigation
of issues expressly or impliedly decided by the appellate
court”). Accordingly, we grant the Government’s motion and
dismiss Penland’s appeal.
The Government’s motion to dismiss does not include
Mary Penland’s appeal of the final order of forfeiture. In
agreeing to the Stipulation, Mary Penland unequivocally
relinquished “all right, title and interest” she may have had in
the forfeited property. Now, nearly four years later, Mary
Penland attempts to disavow the Stipulation. Her arguments do
not persuade us to disregard the unambiguous language set forth
in the Stipulation. Accordingly, we affirm the final order of
forfeiture as it pertains to Mary Penland’s interests in the
forfeited properties.
For the foregoing reasons, we grant the Government’s
motion and dismiss Penland’s appeal. Further, we affirm the
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forfeiture order as to Mary Penland. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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