United States v. Peebles ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4730
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ERNEST PEEBLES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Norman K. Moon, District Judge.
(CR-03-165)
Submitted: June 22, 2005 Decided: August 31, 2005
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sidney H. Kirstein, SIDNEY H. KIRSTEIN ATTORNEY, Lynchburg,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Edward A. Lustig, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Ernest Peebles, Jr., pled guilty in May 2004 to
possession of five or more grams of crack cocaine with intent to
distribute, 21 U.S.C. § 841(a), (b)(1)(B)(iii) (2000), and was
sentenced to a term of ninety-two months imprisonment. Peebles now
seeks to appeal his sentence. Because he waived his right to
appeal, we dismiss the appeal.
Peebles’ plea agreement contained the following waiver
provision:
Notwithstanding any other provision of this plea
agreement, and understanding that I have no guarantee,
based on the recommendations or stipulations contained in
this agreement, of any particular disposition by the
Court, and understanding that the Court may sentence me
up to the maximum provided under the statute to which I
am agreeing to plead guilty, I hereby waive my right of
appeal as to any and all issues in this case and consent
to the final disposition of this matter by the United
States District Court. I further waive any right I may
have to collaterally attack any sentence imposed in any
future proceeding, including but not limited to my
rights, if any, under 28 U.S.C. § 2255. I understand
that if I pursue any collateral attack on my conviction
and sentence, this will constitute a breach of this
agreement, and entitle the government to any of its
remedies under this agreement.
This court reviews the validity of a waiver de novo.
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
uphold a waiver of appellate rights if the waiver is valid and the
issue being appealed is within the scope of the waiver. United
States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
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voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. Wessells, 936 F.2d at 167-68.
At the guilty plea hearing, after the Fed. R. Crim. P. 11
colloquy, Peebles acknowledged that he had read, understood, and
signed the plea agreement. The court asked Peebles’ attorney to
summarize the plea agreement and specifically asked whether it
contained a waiver of appeal rights. Peebles’ attorney informed
the court that his client was waiving his right to appeal under the
terms of the agreement. The court then asked Peebles whether his
attorney had said anything contrary to his understanding of the
agreement. Peebles answered in the negative.
Peebles argues that he did not “waive challenges or
objections to the ultimate sentence of the judge,” and that an
appeal “from such rulings, as opposed to case issues,” is not
precluded. This claim ignores the language of Section H of
Peebles’ plea agreement, quoted above, which sets out a
comprehensive waiver of his right to appeal the sentence. Peebles
contends further that Section C of his plea agreement “should be
construed to allow appeals from guideline rulings.” Section C
states that the government would recommend a sentence at the low
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end of the guideline range, but that the court was not obligated to
follow the government’s recommendation, and that a sentence that
varied from the government’s recommendation did not constitute a
basis for withdrawal of the guilty plea. We are not persuaded that
Section C gives Peebles the right to appeal his sentence.
Citing United States v. Guevara, 941 F.2d 1299 (4th Cir.
1991), Peebles maintains that, “given the one-sided nature of the
document prepared by the Government,” he should have the same
appeal rights as the government. His reliance on Guevara is
misplaced because it dealt with a plea agreement that contained a
waiver of the defendant’s right to appeal but was silent as to the
government’s appeal rights. Guevara held that “such a provision
against appeals must also be enforced against the government, which
must be held to have implicitly cast its lot with the district
court, as the defendant explicitly did.” 941 F.2d at 1299-1300.
Peebles’ plea agreement is distinguishable because Peebles
explicitly waived his right to appeal and the government explicitly
retained its right to appeal.
Finally, Peebles argues that his waiver was not knowing
and voluntary because he could not know when he entered into the
plea agreement in May 2004 what errors the district court might
later commit at the sentencing hearing. However, we recently held
that a waiver of the right to appeal contained in a plea agreement
that was accepted before the Supreme Court’s decision in United
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States v. Booker, 125 S. Ct. 738 (2005), was not invalidated by a
subsequent change in the law. United States v. Blick, 408 F.3d
162, 170-73 (4th Cir. 2005).
Accordingly, we dismiss the appeal. 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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