United States v. Linder , 174 F. App'x 174 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4905
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON LANDIS LINDER, a/k/a Black, a/k/a Rodney
Peterson,
Defendant - Appellant.
No. 04-4916
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY TARRATS, a/k/a Skip, a/k/a Ozzy,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-04-16)
Submitted: March 8, 2006 Decided: April 5, 2006
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia; Steven
C. Frucci, STALLINGS & BISCHOFF, P.C., Virginia Beach, Virginia,
for Appellants. Paul J. McNulty, United States Attorney, Darryl J.
Mitchell, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Jason Landis Linder and
Jeffrey Tarrats seek to appeal their convictions and sentences to
262 months in prison and five years of supervised release after
pleading guilty to conspiring to distribute and possess with intent
to distribute one kilogram or more of heroin in violation of 21
U.S.C. § 846 (2000). They seek to raise claims challenging their
sentences based on Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005). Because the
Appellants waived their appellate rights in their plea agreements,
we grant the Government’s motions to dismiss on that basis and deny
Appellants’ motions to remand.
When the Government seeks to enforce a waiver of
appellate rights, and there is no claim that the Government
breached the plea agreement, this court will enforce the waiver if
the record establishes the defendant knowingly and intelligently
agreed to waive the right to appeal, and the issue being appealed
is within the scope of the waiver. United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). “An appeal waiver is not
knowingly or voluntarily made if the district court fails to
specifically question the defendant concerning the waiver provision
of the plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the full
significance of the waiver.” United States v. Johnson, 410 F.3d
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137, 151 (4th Cir.), cert. denied, 126 S. Ct. 461 (2005) (internal
quotations and citations omitted).
In their plea agreements, Appellants each waived their
rights to appeal their convictions and “any sentence within the
maximum provided in the statute of conviction (or the manner in
which that sentence was determined) on . . . any ground
whatsoever.” Appellants do not contend the district court failed
to question them concerning their appellate waivers at their guilty
plea hearings or that they did not otherwise understand the full
significance of their waivers. Further, they do not assert that
their sentences exceeded the statutory maximum or that the
Government breached their plea agreements.
Linder contends that while he “did waive his right to
appeal in the plea agreement,” the “agreement did not contemplate
Blakely.” However, his argument is foreclosed by our decisions in
Johnson, 410 F.3d at 153, and Blick, 408 F.3d at 170. Tarrats
contends the Government’s failure to object, after the district
court inquired at the end of his sentencing hearing whether “he
still wish[ed] to follow” his appellate waiver and Tarrats’s
counsel stated that Blakely “would be the sole reason for an
appeal,” constituted either a modification of his appellate waiver
or a waiver by the Government of its right to enforce the appellate
waiver on appeal. We disagree. We find there was no mutually
agreed upon modification of the waiver of appellate rights
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contained in Tarrats’s knowing and voluntary plea agreement.
Moreover, the Government has timely and diligently pursued
enforcement of the appellate waiver on appeal.
Accordingly, we grant the Government’s motions to dismiss
and deny the Appellants’ motions to remand. 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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