UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4606
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL P. KLEKAMP,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, District Judge. (3:16-cr-00141-HEH-1)
Submitted: February 26, 2018 Decided: March 14, 2018
Before DIAZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Andrew M. Stewart, DENNIS, STEWART, KRISCHER & TERPAK, PLLC, Arlington,
Virginia, for Appellant. David Thomas Maguire, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In accordance with a written plea agreement, Michael P. Klekamp pled guilty to
bank fraud. He was sentenced to 51 months in prison. Klekamp appeals, contending that
his sentence is procedurally unreasonable. The United States moves to dismiss the appeal
based upon a waiver-of-appellate-rights provision in the plea agreement. Klekamp opposes
the motion. We grant the motion to dismiss the appeal.
I
We review de novo the validity of an appeal waiver. United States v. Copeland,
707 F.3d 522, 528 (4th Cir. 2013). Where the Government seeks to enforce an appeal
waiver and did not breach its obligations under the plea agreement, we will enforce the
waiver if the record establishes that (1) the defendant knowingly and intelligently waived
his right to appeal, and (2) the issues raised on appeal fall within the scope of the waiver.
United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).
A
To determine whether a waiver is knowing and intelligent, we examine “the totality
of the circumstances, including the experience and conduct of the accused, as well as the
accused’s educational background and familiarity with the terms of the plea agreement.”
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal quotation marks
omitted). Other factors to be considered are whether the waiver language in the plea
agreement was “unambiguous” and “plainly embodied,” and whether the district court fully
questioned the defendant during the Fed. R. Crim. P. 11 colloquy regarding the waiver of
his right to appeal. Id. at 400-401; see United States v. Johnson, 410 F.3d 137, 151 (4th
2
Cir. 2005); United States v. Wessells, 936 F.3d 165, 167-68 (4th Cir. 1991). Generally, if
the district court specifically questioned the defendant regarding the waiver during the
colloquy or the record otherwise indicates that the defendant understood the full
significance of the waiver, the waiver is valid. Johnson, 410 F.3d at 151.
Klekamp’s plea agreement included the following provision:
The defendant . . . knowingly waives the right to appeal the conviction and
any sentence within the statutory maximum described above (or the manner
in which that sentence was determined) on the grounds set forth in 18 U.S.C.
§ 3742 or on any ground whatsoever other than an ineffective assistance of
counsel claim that is cognizable on direct appeal, in exchange for the
concessions made by the United States in this plea agreement. . . .
At his Fed. R. Crim. P. 11 hearing, Klekamp informed the court that he was born in
1949, had a master’s degree, was not under the influence of alcohol or drugs, and was
satisfied with his lawyer. The court explained Klekamp’s rights, the nature of the charge,
and the penalties he faced. Klekamp said that he understood. He indicated that he was
pleading guilty of his own volition and that he was guilty. He acknowledged that he had
signed and comprehended the written plea agreement. The court reviewed the agreement
and specifically inquired about the waiver provision. Klekamp stated that he understood
the waiver. Based on the totality of the circumstances, we conclude that the waiver was
knowing and intelligent.
B
Under Blick, the next question is whether the issue Klekamp seeks to raise on appeal
falls within the scope of the waiver. The only issue raised in the brief is whether the
sentence is procedurally reasonable--an issue clearly encompassed by the waiver.
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II
We therefore grant the motion to dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
DISMISSED
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