United States v. Paschelke , 382 F. App'x 262 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4726
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIJAH BEN PASCHELKE,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00097-JPB-DJJ-2)
Submitted: February 18, 2010 Decided: June 8, 2010
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
L. Richard Walker, Senior Litigator, FEDERAL PUBLIC DEFENDER
OFFICE, Clarksburg, West Virginia, for Appellant. Thomas Oliver
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elijah Ben Paschelke pled guilty, pursuant to a plea
agreement, to one count of aiding and abetting the manufacture
of marijuana, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2006). The district court sentenced
Paschelke to 188 months’ imprisonment. On appeal, Paschelke’s
counsel has filed an Anders 1 brief suggesting that there are no
non-frivolous issues for appeal, but questioning whether the
district court plainly erred in accepting Paschelke’s guilty
plea. The Government has moved to dismiss the appeal in part
based on Paschelke’s waiver of appellate rights and in part on
the lack of merit in the unwaived issue. We dismiss in part and
affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The question of whether a defendant validly
1
Anders v. California, 386 U.S. 738 (1967).
2
waived his right to appeal is a question of law that this court
reviews de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
Our review of the record leads us to conclude that
Paschelke knowingly and voluntarily waived the right to appeal
his sentence. We therefore grant the Government’s motion to
dismiss in part and decline to perform any Anders review of
Paschelke’s sentence. Although Paschelke’s appeal waiver
insulates his sentence from appellate review, the waiver does
not preclude our consideration of the claim Paschelke’s counsel
raises on appeal 2 or prohibit our review of Paschelke’s
conviction pursuant to Anders. Consequently, we deny the motion
to dismiss in part.
Turning, then, to the claim raised in counsel’s brief,
because Paschelke did not move in the district court to withdraw
his guilty plea, his challenge to the adequacy of the Fed. R.
Crim. P. 11 hearing is reviewed for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our
review of the transcript of the plea hearing leads us to
conclude that the district court substantially complied with the
2
The Government moves to dismiss the claim raised by
counsel as meritless. This constitutes, in effect, a motion for
summary affirmance of the unwaived claim. This court reserves
such a motion for extraordinary circumstances not present here.
4th Cir. R. 27(f).
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mandates of Rule 11 in accepting Paschelke’s guilty plea and
that the court’s omissions did not affect Paschelke’s
substantial rights. Critically, the transcript reveals that the
district court ensured the plea was supported by an independent
factual basis and that Paschelke entered the plea knowingly and
voluntarily with an understanding of the consequences.
See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991). Accordingly, we discern no plain error.
In accordance with Anders, we have reviewed the
remainder of the record in this case and have found no unwaived
and meritorious issues for appeal. We therefore affirm
Paschelke’s conviction and dismiss any appeal of his sentence.
We also deny Paschelke’s motions seeking an extension of time to
file a pro se supplemental brief and for other relief. This
court requires that counsel inform Paschelke, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Paschelke 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 Paschelke.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
4
before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
5