United States v. Grimes ( 2005 )

Filed: August 10, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4603
(CR-02-158-L)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RYAN PATRICK GRIMES,
Defendant - Appellant.
O R D E R
The court amends its opinion filed August 3, 2005, as
follows:
On Page 2, line 1 is amended to read “Ryan Patrick Grimes
seeks to appeal the 130-month.”
For the Court
/s/ Patricia S. Connor
____________________________
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4603
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RYAN PATRICK GRIMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-02-158-L)
Submitted: June 22, 2005 Decided: August 3, 2005
Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Wein, Greenbelt, Maryland, for Appellant. Allen F. Loucks,
United States Attorney, Christopher J. Romano, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ryan Patrick Grimes seeks to appeal the 130-month
sentence he received after he pled guilty to one count of bank
robbery, 18 U.S.C. § 2113(a), (f) (2000). Grimes argues that
resentencing is required under United States v. Booker, 125 S. Ct.
738 (2005), and also seeks to challenge the extent of the district
court’s downward departure for substantial assistance. For the
reasons explained below, we dismiss the appeal.
Under the terms of his plea agreement, Grimes waived the
right to appeal his sentence. Grimes’ plea agreement contained the
following waiver of his right to appeal his sentence:
[Grimes] and the United States knowingly and
expressly waive all rights conferred by 18 U.S.C. § 3742to appeal whatever sentence is imposed, including any
issues that relate to the establishment of the guideline
range, reserving only the right to appeal from an upward
or downward departure from the guideline range that is
established at sentencing. Nothing in this agreement
shall be construed to prevent either your client or the
United States from invoking the provisions of Federal
Rule of Criminal Procedure 35, and appealing from any
decision thereunder, should a sentence be imposed that
exceeds the statutory maximum allowed under the law or
that is less than any applicable statutory minimum
mandatory provision.
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.
Here, the record reveals that the district court
conducted a thorough Rule 11 inquiry and specifically questioned
Grimes about whether he understood that he was waiving his
appellate rights. Grimes answered that he did. The record reveals
that the court questioned Grimes about his understanding of the
waiver provision. At a later hearing to resolve an issue unrelated
to the waiver, Grimes was given an opportunity to withdraw his
guilty plea and repudiate the plea agreement. Instead, he
reaffirmed his desire to plead guilty pursuant to the plea
agreement.
We conclude that Grimes’ waiver was knowingly and
intelligently made. Moreover, we recently held that a valid waiver
of the right to appeal contained in a plea agreement that was
accepted before the Supreme Court’s decision in Booker was not
invalidated by the change in the law effected by Booker. United
States v. Blick, 408 F.3d 162, 170-73 (4th Cir. 2005).
We therefore dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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