United States v. Lee ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4878
ERIC WILSON LEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-214-A)
Submitted: May 26, 1998
Decided: June 23, 1998
Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
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COUNSEL
John Kenneth Zwerling, Joel B. Simberg, ZWERLING & KEMLER,
P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, W. Neil Hammerstrom, Jr., Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Eric Wilson Lee appeals imposition of a 210-month sen-
tence following his guilty plea pursuant to a plea agreement to con-
spiracy to distribute crack cocaine. Because we find that Lee
knowingly waived his appellate rights in a voluntary plea agreement,
we dismiss this appeal.
Lee does not dispute that his plea agreement stated that "the defen-
dant knowingly waives the right to appeal any sentence within the
maximum provided in the statute of conviction (or the manner in
which that sentence was determined) . . . on any ground whatever, in
exchange for the concessions made by the United States in this plea
agreement." Nor has Lee asserted any claim that his guilty plea was
unknowing or involuntary. The court conducted a thorough hearing
under Fed. R. Crim. P. 11 and specifically noted that Lee was waiving
his right to appeal his sentence. The court eventually sentenced Lee
at the bottom of his guidelines range.
Nonetheless, the sentencing court stated at the sentencing hearing
that it "relieved" Lee of that part of the plea agreement with the Gov-
ernment which "bound [him] not to appeal his sentence." The court
overruled the Government's objection to this action. We vacate the
district court's order "relieving" Lee of the waiver of appellate review
portion of his plea agreement and dismiss the appeal.
There is no provision in Fed. R. Crim. P. 11 for a court to modify
a plea agreement. When parties reach a plea agreement, the court
"may accept or reject the agreement, or may defer its decision as to
the acceptance or rejection until there has been an opportunity to con-
sider the presentence report." Fed. R. Crim. P. 11(e)(2). Once the
court has accepted a plea agreement, it is generally bound by the
terms of that agreement. See United States v. Ritsema, 89 F.3d 392,
399 (7th Cir. 1996) (citations omitted). Though some courts have rec-
ognized that approval of a plea agreement might later be rescinded
based on the defendant's fraud upon the court, see id. at 400, we have
no such allegation in this case. A defendant may, as part of his plea
agreement, validly waive his right to appeal his guidelines sentence
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if such waiver is knowing and intelligent. See United States v.
Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995).
It is undisputed that the waiver of appellate rights in Lee's plea
agreement is valid. Once the district court accepted the plea agree-
ment, it was without authority to modify it. We therefore vacate the
district court's order "relieving" Lee of his appellate waiver and dis-
miss this appeal pursuant to the terms of his plea agreement. We dis-
pense 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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