United States v. William Harrison , 651 F. App'x 220 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4746
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM H. HARRISON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:15-cr-00121-HEH-1)
Submitted: May 18, 2016 Decided: June 8, 2016
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Frances H. Pratt,
Carolyn V. Grady, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Jessica D. Aber, OFFICE OF
THE 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Unpublished opinions are not binding precedent in this circuit.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, William H.
Harrison pled guilty to theft of public money, 18 U.S.C. § 641
(2012). Harrison was sentenced to four months in prison,
$32,661.76 in restitution, and three years of supervised
release. Harrison now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning the validity of the sentence but stating that there
are no meritorious grounds for relief. Harrison has filed a pro
se supplemental brief. The United States moves to dismiss the
appeal based upon a waiver-of-appellate-rights provision in the
plea agreement. Harrison 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 (1) the defendant knowingly
and intelligently waived his right to appeal under the totality
of the circumstances, 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).
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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 Cir. 2005); United States v. Wessells,
936 F.3d 165, 167-68 (4th Cir. 1991). Generally, if the
district court specifically questions the defendant regarding
the waiver of appellate rights 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.
Harrison’s plea agreement provided in relevant part:
The defendant . . . understands that Title 18, United
States Code, Section 3742 affords a defendant the
right to appeal the sentence imposed. Nonetheless,
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 any ground
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whatsoever, in exchange for the concessions made by
the United States. . . .
With respect to the “statutory maximum” mentioned in this
provision, the plea agreement stated, “The maximum penalties for
this offense are a maximum term of ten years imprisonment, a
fine of $250,000, full restitution, a special assessment, and 3
years of supervised release.” Additionally, the agreement
specified that the amount of statutorily mandated restitution
was $32,661.76. In signing the agreement, Harrison
acknowledged, “I have read this plea agreement and carefully
reviewed every part of it with my attorney. I understand this
agreement and voluntarily agree to it.”
At the Rule 11 hearing, Harrison assured the court that he
understood the maximum penalties he faced to include: ten years
in prison; three years of supervised release; and mandatory
restitution. Additionally, he responded, “Yes, I do,” when
asked if he understood “that supervised release means that when
you are released from prison, you will have to abide by certain
conditions?” Finally, the court specifically inquired whether
Harrison understood that restitution was mandatory and that the
amount of restitution was $32,661.76. Harrison responded, “Yes,
sir.”
Harrison advised the court during the hearing that he was
69, had a GED and had taken 60 hours at a community college. He
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was not under the influence of alcohol or drugs that impaired
his ability to understand the Rule 11 proceeding, the criminal
information, the plea agreement, or the statement of facts.
Harrison stated that he was pleading guilty freely and
voluntarily. He was “entirely satisfied” with his attorney’s
services. Finally, the court inquired about the waiver
provision.
We conclude that, under the totality of the circumstances,
Harrison knowingly and voluntarily waived his right to appeal
both his conviction and sentence.
B
Under Blick, the next question is whether the issues
Harrison seeks to raise on appeal fall within the scope of the
waiver. Harrison argues that the waiver did not cover
restitution, supervised release, or the conditions of release.
This claim lacks merit. With respect to restitution, we have
held that “an order to pay restitution is a part of a criminal
sentence.” United States v. Grant, 715 F.3d 552, 554 (4th Cir.
2013). We note additionally that the plea agreement
specifically stated that “full restitution” was one penalty for
the offense and set forth the amount of restitution required.
Finally, at the Rule 11 hearing, Harrison represented that he
understood that restitution of $32,661.76 was one of the
penalties he faced.
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Similarly, there is no merit to the claim that the waiver
did not encompass supervised release. The plea agreement
plainly stated that the maximum penalty to which Harrison was
subject included three years of supervised release, and
Harrison informed the court that the penalty he faced included
three years of supervised release. Finally, “the supervised
release term constitutes part of the . . . criminal sentence.”
United States v. Buchanan, 638 F.3d 448, 455 (4th Cir. 2011).
As for the conditions of release, we have joined sister Circuits
in holding that challenges to conditions of supervised release
fall within the scope of appellate waivers. United States v.
Ballard, 491 F. App’x 374, 376 (4th Cir. 2012) (No. 11-5014);
see also United States v. Nguyen, 618 F.3d 72, 76 (1st Cir.
2010); United States v. Goodson, 544 F.3d 529, 537 (3d Cir.
2008).
Harrison also contends that the court: failed to consider
all the 18 U.S.C. § 3553(a) (2012) factors when imposing
sentence; did not adequately explain the sentence; relied
improperly on past convictions when imposing sentence; should
have varied downward; and did not properly determine the amount
of restitution. These sentencing issues clearly fall within the
scope of Harrison’s waiver.
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II
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. * Accordingly, we
grant the motion to dismiss the appeal. This court requires
that counsel inform Harrison, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Harrison 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 Harrison. 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
*
Contrary to Harrison’s claim, a defendant has no right to
a Fed. R. Crim. P. 11(c)(1)(C) plea agreement.
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