United States v. Liedke , 94 F. App'x 976 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4779
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWAYNE ADAM LIEDKE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-02-249-BO)
Submitted: April 15, 2004 Decided: April 20, 2004
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Felice McConnell
Corpening, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dwayne Adam Liedke appeals from a criminal judgment and
144-month sentence following his guilty plea entered in accordance
with a written plea agreement. Liedke pled guilty to disqualified
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000). In his plea agreement, Liedke waived his right to appeal
his conviction and sentence except in the face of an upward
departure from the sentencing guidelines.
Liedke’s appointed counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious issues presented on appeal but raising one
question. Liedke was informed of his right to file a supplemental
brief but has failed to do so. Liedke challenges the district
court’s downward departure below the statutory minimum sentence for
the firearm offense. He asserts the court improperly relied on
factors other than Liedke’s cooperation to limit the downward
departure granted upon the Government’s motion filed pursuant to
U.S. Sentencing Guidelines Manual § 5K1.1 (2002). This court does
not review downward departures unless the departure resulted in an
illegal sentence or resulted from an incorrect application of the
guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995) (citing 18 U.S.C. § 3742(a) (2000)). These factors are not
presented in Liedke’s sentencing. Accordingly, we lack
jurisdiction to review Liedke’s sentence. Id.- 2 -
Moreover, in United States v. Brown, 232 F.3d 399, 403
(4th Cir. 2000), this Court held that “a defendant may not appeal
his sentence if his plea agreement contains an express and
unqualified waiver of the right to appeal, unless that waiver was
unknowing or involuntary.” See also United States v. Wessells, 936
F.2d 165, 167 (4th Cir. 1991); United States v. Wiggins, 905 F.2d
51, 53 (4th Cir. 1990). Liedke has presented no evidence that his
decision to waive his appellate rights was unknowing or
unintelligent, or claimed any exception to the validity of the plea
waier. Thus, Liedke’s appeal is also foreclosed by the appellate
waiver he knowingly signed in his plea agreement.
Accordingly, we dismiss Liedke’s appeal. We have examined
the entire record in this case in accordance with the requirements
of Anders and find no meritorious issues for appeal. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
- 3 -
materials before the court and argument would not aid the
decisional process.
DISMISSED
- 4 -