United States v. Schaar , 45 F. App'x 264 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4526
CLINTON S. SCHAAR, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-142)
Submitted: August 14, 2002
Decided: September 5, 2002
Before MICHAEL and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Eric A. Bach, Charlotte, North Carolina, for Appellant. Robert J. Con-
rad, Jr., United States Attorney, Brian Lee Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SCHAAR
OPINION
PER CURIAM:
Clinton S. Schaar, Jr., pled guilty to conspiracy to distribute an
unspecified quantity of marijuana, in violation of 21 U.S.C.
§§ 841(a), 846 (2000), and was sentenced to a term of sixty-three
months imprisonment. In his plea agreement, Schaar stipulated that
his offense involved at least 400 kilograms but less than 700 kilo-
grams of marijuana. As part of the plea agreement, Schaar also agreed
to waive his right to appeal his conviction or sentence except as to
claims of ineffective assistance of counsel or prosecutorial miscon-
duct. During the Fed. R. Crim. P. 11 hearing, the district court specifi-
cally reviewed the appeal waiver provision with Schaar and Schaar
acknowledged that he was waiving his appeal rights.
At the sentencing hearing, Schaar moved for a departure below the
guideline range of 63-78 months based on his ill health. The district
court found that Schaar’s condition did not amount to an extraordi-
nary physical impairment, see U.S. Sentencing Guidelines Manual
§ 5H1.4, p.s. (2001), and thus it lacked discretion to depart. The court
imposed a sentence of sixty-three months imprisonment. Before
imposing sentence, the court stated that it would "blue pencil"
Schaar’s plea agreement to remove the waiver provision, and advised
Schaar that he could appeal the court’s decision that it lacked author-
ity to depart. Schaar then noted this appeal.
On appeal, Schaar argues that the district court erred in finding that
it could not depart, but does not contest the validity of his waiver of
appeal rights. The government urges that the appeal be dismissed
based on the waiver. We agree that the waiver is enforceable despite
the district court’s attempt to modify the plea agreement by removing
the waiver. See United States v. Howle, 166 F.3d 1166, 1168-69 (11th
Cir. 1999) (district court may accept or reject plea agreement, but
lacks authority to modify it); United States v. Ritsema, 89 F.3d 392,
399 (7th Cir. 1996) (same).
We therefore dismiss the appeal pursuant to the terms of the plea
agreement.* To the extent that the district court’s attempt to strike the
*We note that Schaar received a sentence in excess of the statutory
maximum authorized by 21 U.S.C.A. § 841(b)(1)(D) for a marijuana-
UNITED STATES v. SCHAAR 3
waiver provision from the plea agreement constitutes an order, we
vacate that order. 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
only offense. In this situation, the waiver may not prevent this court from
reviewing the legality of the sentence sua sponte under Federal Rule of
Criminal Procedure 52(b) if plain error occurred. See United States v.
Childress, 26 F.3d 498, 502 (4th Cir. 1994). However, Schaar’s stipula-
tion that the offense involved over 200 kilograms of marijuana exceeds
the threshold for a sentence of more than five years under
§ 841(b)(1)(B), (C). Therefore, we conclude that, even if plain error
occurred, the "overwhelming and uncontroverted evidence" provided by
Schaar’s stipulation precludes correction of his sentence. United States
v. Cotton, 122 S. Ct. 1781, 1787 (2002).