United States v. Hart , 176 F. App'x 415 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM H. HART,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-77)
Submitted: March 20, 2006 Decided: April 20, 2006
Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
William C. Forbes, Charleston, West Virginia, for Appellant.
Alberto R. Gonzales, United States Attorney General, Randolph J.
Bernard, Robert H. McWilliams, Jr., Special Attorneys to the United
States Attorney General, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William H. Hart pled guilty to theft/embezzlement of
United States property not in excess of $1,000, in violation of 18
U.S.C. § 641 (2000). The district court sentenced Hart to five
years of probation, as a condition of which he would serve a six-
month term of home confinement, and to pay restitution of $3,000.
Hart appeals his sentence, arguing that his sentence was enhanced
in violation of his Sixth Amendment rights under United States v.
Booker, 543 U.S. 220 (2005).
The Government asserts that Hart validly waived the right
to appeal his sentence in the plea agreement. A defendant may
waive the right to appeal if that waiver is knowing and
intelligent. United States v. Blick, 408 F.3d 162, 169 (4th Cir.
2005). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. United States v. Wessells, 936 F.2d 165, 167-68 (4th
Cir. 1991); United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir.
1990). A waiver of appeal does not prohibit the appeal of a
sentence imposed in excess of the statutory maximum, a sentence
based on a constitutionally impermissible factor such as race,
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), or
proceedings conducted in violation of the Sixth Amendment right to
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counsel following the entry of the guilty plea. United States v.
Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).
Our review of the record leads us to conclude that Hart
knowingly and voluntarily waived the right to appeal his sentence.
See Blick, 408 F.3d at 169-73 (holding that plea agreement waiver
of right to appeal that district court accepted prior to Booker was
not invalidated by change in law effected by that decision).
Moreover, the challenges raised on appeal fall within the scope of
the waiver. Accordingly, we dismiss Hart’s appeal.
We note, however, a clerical error in Hart’s criminal
judgment. The Government charged Hart with theft/embezzlement of
United States property not in excess of $1,000, in violation of 18
U.S.C. § 641 (2000). This is also the charge listed in the plea
agreement. Although the judgment correctly describes the offense
as theft/embezzlement of United States property not in excess of
$1,000, it inaccurately lists the statutory violation as 8 U.S.C.
§ 641 rather than 18 U.S.C. § 641. We request that the clerk of
the district court correct this typographical error. See Fed. R.
Crim. P. 36.
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
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