United States v. Jean Tognia , 500 F. App'x 208 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4365
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEAN MARIAT TOGNIA, a/k/a Herve Agbleke, a/k/a Leopold
Bajjilekin, a/k/a Teopold Bassilekin, a/k/a Agbleke Herve,
a/k/a Rymsi Kerve, a/k/a Jean-Pierre Lebeurre, a/k/a Tony
Lebeurre, a/k/a Victor Moise, a/k/a Kerve Perin, a/k/a
Tognia Perin, a/k/a Tryamsi Perin, a/k/a Ryamsi Rognia,
a/k/a Perin Ryamsi, a/k/a Jlerve Tognia, a/k/a Perin Tognia,
a/k/a Klerve Perin,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:11-
cr-00193-RWT-1)
Submitted: November 21, 2012 Decided: December 6, 2012
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
James Wyda, Federal Public Defender, Meghan S. Skelton, Staff
Attorney, Greenbelt, Maryland, for Appellant. Adam Kenneth Ake,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to a written plea agreement, Jean Mariat
Tognia pled guilty to conspiracy to commit bank fraud, in
violation of 18 U.S.C. § 1349 (2006), and aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1) (2006). In the
plea agreement, Tognia waived his right to appeal his conviction
and sentence, reserving only the right to appeal a sentence
exceeding the range provided by offense level thirteen, plus
twenty-four months. Tognia now appeals. His counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal but
questioning whether Tognia could be guilty of aggravated
identity theft because the individual whose identity was at
issue gave Tognia permission to use her identity. Tognia was
advised of his right to file a pro se supplemental brief, but he
has not filed one. Based on the appellate waiver provision in
the plea agreement, the Government has filed a motion to dismiss
Tognia’s appeal of his conviction and sentence, except to the
extent that the appeal challenges the voluntariness of Tognia’s
guilty plea. We dismiss in part and affirm in part.
We review de novo a defendant’s waiver of appellate
rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
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forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted). To determine whether the waiver is knowing and
intelligent, we look “to the totality of the circumstances,
including the experience and conduct of the accused, as well as
the accused’s educational background and familiarity with the
terms of the plea agreement.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks
omitted).
Our review of the record leads us to conclude that
Tognia knowingly and voluntarily waived the right to appeal his
conviction and that the issue his counsel asserts on appeal is
within the scope of the waiver. We therefore grant in part the
Government’s motion to dismiss and dismiss the appeal of
Tognia’s conviction and sentence. Pursuant to Anders, we have
reviewed the entire record and have found no unwaived issues
that are meritorious and outside the scope of the waiver. We
therefore deny in part the Government’s motion to dismiss and
affirm.
This court requires that counsel inform Tognia, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Tognia requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
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leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Tognia. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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