UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PAUL HADE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00786-RDB-1)
Submitted: May 11, 2012 Decided: May 17, 2012
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Barbara E. Kittay, Kensington, Maryland, for Appellant.
Jonathan Biran, Assistant United States Attorney, Kristi Noel
O'Malley, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Paul Hade pled guilty pursuant to a plea
agreement to sexual exploitation of a minor for the purpose of
producing child pornography, in violation of 18 U.S.C.A.
§ 2251(a) (West Supp. 2011), and was sentenced to a total term
of 240 months in prison. Counsel has filed an appeal pursuant
to Anders v. California, 386 U.S. 738 (1967), in which she
states that there are no viable grounds for appeal, but
nevertheless raises as a possible issue for review whether
§ 2251(a) is, as applied to Hade, an unconstitutional exercise
of Congress’s power under the Commerce Clause. Counsel has also
filed a motion to withdraw as counsel for Hade. Hade asks that
he be granted new counsel and an extension on appeal, but has
filed a pro se supplemental brief in which he raises an issue
similar to the one raised in the Anders brief. The Government
moves to dismiss the appeal, in part, based on the appellate
waiver in Hade’s plea agreement. We deny counsel’s motion to
withdraw and Hade’s requests for new counsel and for an
extension on appeal, and we affirm in part and dismiss in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. See United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent
review of the record supports the conclusion that Hade
voluntarily and knowingly waived his right to appeal his
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conviction and sentence to the extent that the sentence was
within or below a Guidelines range calculated based on a total
offense level of thirty-seven. Thus, we conclude that the
waiver is valid and enforceable.
However, even a valid waiver does not waive all
appellate claims. Specifically, a valid appeal waiver does not
preclude a challenge to a sentence on the ground that it exceeds
the statutory maximum or is based on a constitutionally
impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
guilty plea. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993). Moreover, the appellate waiver in Hade’s plea
agreement did not waive any challenges he may have about his
sentence if that sentence was based on a Guidelines range
calculated based on a total offense level greater than thirty-
seven. Hade’s 240-month sentence is within the 210-to-262-month
Guidelines range that was calculated based on a total offense
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level of thirty-seven, and he raises no claims that fall outside
the scope of his appellate waiver. *
Accordingly, we grant the Government's motion to
dismiss and dismiss the appeal, in part. Although we are
charged under Anders with reviewing the record for unwaived
error, we have reviewed the record in this case and have found
no unwaived meritorious issues for appeal. We therefore deny
counsel’s motion to withdraw at this time, deny Hade’s requests
for new counsel and for an extension on appeal, and dismiss the
appeal in part and affirm in part. This court requires that
counsel inform Hade, in writing, of his right to petition the
Supreme Court of the United States for further review. If Hade
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may then move this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Hade. We
*
We nonetheless conclude that the issue raised in Hade’s
Anders and pro se supplemental briefs is without merit. See
United States v. Malloy, 568 F.3d 166, 179-80 (4th Cir. 2009)
(finding that § 2251(a) as applied to defendant was a valid
exercise of Congress’s Commerce Clause power where “there was
unquestionably ‘local’ production of child pornography with a
video camera and videotape that had traveled in foreign
commerce”). Moreover, to the extent that Hade suggests that
counsel provided ineffective assistance, we conclude that
ineffective assistance does not conclusively appear on the
record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).
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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.
AFFIRMED IN PART;
DISMISSED IN PART
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