United States v. Charles Norman Baur, Jr. , 154 F. App'x 187 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 14, 2005
No. 05-11324
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-14031-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES NORMAN BAUR, JR.,
a.k.a. Norman Baur,
a.k.a. Edward Baur,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 14, 2005)
Before MARCUS, WILSON and RONEY, Circuit Judges.
PER CURIAM:
In this direct appeal after a guilty plea, appointed counsel’s motion to
withdraw is granted and the defendant’s conviction and sentence are affirmed.
Indicted on six counts of bank fraud, in violation of 18 U.S.C. § 1344,
defendant Charles Norman Baur, Jr. pled guilty to two counts in exchange for the
government’s promise to dismiss the remaining counts. Baur and the government
entered into a written plea agreement in which the government agreed to
recommend at sentencing a three-level reduction for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1. The plea agreement also noted: that Baur’s sentence
would be calculated using the Federal Sentencing Guidelines, that the court had
discretion to depart from the guideline range under certain circumstances, that Baur
would not be able to withdraw his plea solely as a result of the sentence imposed,
that Baur faced a 30-year statutory maximum and $1 million fine on each count,
and that Baur’s base offense level under the Sentencing Guidelines was 24 as a
result of Baur having derived more than $1 million in gross receipts from one or
more financial institutions. Because no single financial institution was ever
endangered for more than $1 million in losses, however, the parties agreed that
Baur’s case fell “outside the heartland” of cases and justified a downward
departure to an offense level of 19. Baur agreed to waive his statutory right to
appeal his sentence under 18 U.S.C. § 3742, including any constitutional challenge
to the application of the Sentencing Guidelines, unless his sentence exceeded the
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statutory maximum sentence or was the result of an upward departure, or if the
government appealed the sentence imposed.
Before accepting Baur’s guilty plea at a change of plea hearing, the district
court, in compliance with the requirements of Federal Rule of Criminal Procedure
11, specifically questioned Baur concerning the plea agreement’s appeal-waiver
provision, which Baur stated that he understood the effect of his waiver. The
record clearly shows that Baur understood the nature and extent of his
sentence-appeal waiver.
The court sentenced Baur to 37 months’ imprisonment, at the low end of the
guideline range. The court also imposed a three-year term of supervised release
and waived any applicable restitution or fine. Neither party indicated that they had
any objections.
Robert E. Adler, appointed to represent Baur, filed a notice of appeal on
behalf of Baur and thereafter filed a motion to withdraw, accompanied by a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), concluding
that there are no grounds upon which an appeal could be predicated. The
certificates of service on the motion and the brief indicate that counsel had served
Baur with both, and this Court’s clerk’s office had also notified Baur of his right to
respond. Baur has not filed a response to counsel’s motion to withdraw.
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In the Anders brief, counsel correctly notes that the only objection raised by
the defense to the Pre-Sentence Investigation Report was its failure to include the
parties’ joint recommendation of a downward departure to an offense level of 19,
based on a finding that the offense fell outside the heartland of bank-fraud cases.
Counsel notes that the district court thereafter accepted the parties’
recommendation and granted the downward departure in accordance with the terms
of the plea agreement. Counsel asserts that the district court properly applied the
guidelines as advisory pursuant to United States v. Booker, 543 U.S. ___,
125 S.Ct. 738 (2005), and sentenced Baur to the low end of the advisory guideline
range. Counsel acknowledges that Baur’s sentence of 37 months’ imprisonment
and 3 years’ supervised release was a lawful sentence.
An independent review of the record reveals no issue of arguable merit and
counsel’s assessment of the relative merit of the appeal is correct. A guilty plea
waives most non-jurisdictional issues. See United States v. Matthews,
168 F.3d 1234, 1242 (11th Cir. 1999). At the Rule 11 hearing, Baur admitted
under oath the facts upon which the indictment was based. Baur voluntarily
waived his right to appeal his sentence. The right to appeal a sentence is a
statutory right that can be waived if waived knowingly and voluntarily. See United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). The exceptions in the
appeal waiver are not present here: the sentence did not exceed the statutory
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maximum sentence nor was it the result of an upward departure, and the
government has not appealed the sentence imposed. In light of the overwhelming
evidence in the record showing that Baur understood the nature and extent of his
sentence-appeal waiver, the waiver is effective and precludes review of any issue
regarding Baur’s sentence.
Counsel’s motion to withdraw is GRANTED and appellant’s conviction and
sentence are AFFIRMED.
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