United States v. Ivan Schlager ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4549
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IVAN C. SCHLAGER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, Chief
District Judge. (3:07-cr-01192-MBS-1)
Submitted: January 19, 2012 Decided: January 31, 2012
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Cameron B. Littlejohn, Jr., Columbia, South Carolina, for
Appellant. Lanny A. Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, Ellen R.
Meltzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ivan C. Schlager pled guilty, pursuant to a written
plea agreement, to two counts of wire fraud, in violation of
18 U.S.C.A. § 1343 (West Supp. 2011). Schlager was sentenced to
concurrent terms of eighty-five-months’ imprisonment and was
ordered in the court’s third amended judgment to pay restitution
in the amount of $23,167,242.76, a $120,000 increase above the
restitution amount ordered in the court’s initial judgment. On
appeal, Schlager argues that the district court committed
significant procedural error by failing to explain sufficiently
its decision to impose the eighty-five-month prison terms.
Schlager also urges this court to set aside the $120,000
increase in the restitution amount and remand the case to the
district court for further proceedings. Relying on the waiver
of appellate rights in Schlager’s plea agreement, the Government
urges dismissal of the appeal. We grant the Government’s
request and dismiss.
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. United States v. Johnson, 410 F.3d 137, 151
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(4th Cir. 2005). However, a district court’s failure to abide
strictly by the requirements of Rule 11 will not render an
appeal waiver unenforceable if the record indicates that the
defendant otherwise understood its significance. United States
v. General, 278 F.3d 389, 400-01 (4th Cir. 2002). The question
of whether a defendant validly waived his right to appeal is a
question of law that we review de novo. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005).
After reviewing the record and the parties’ briefs, we
conclude that Schlager knowingly and voluntarily waived his
right to appeal his conviction and sentence and that the appeal
waiver is enforceable against him. It is undisputed that the
claims Schlager raises on appeal fall within the scope of the
waiver. Accordingly, because Schlager’s valid and enforceable
appeal waiver precludes this appeal, we dismiss it. 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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