United States v. Ryan , 209 F. App'x 300 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4400
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD EMANUEL RYAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:04-cr-00114-WDQ)
Submitted: November 20, 2006 Decided: December 11, 2006
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David R. Solomon, GLASER & SOLOMON, LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Emanuel Ryan pled guilty, pursuant to a plea
agreement, to one count of conspiracy to import cocaine, in
violation of 21 U.S.C. § 963 (2000). The district court sentenced
Ryan to 188 months’ imprisonment. On appeal, Ryan argues that the
district court erred in denying his requests for downward departure
based upon the hardship to his family, and upon the disparity of
sentencing compared to his co-defendant.
The Government asserts that Ryan validly waived the right
to appeal his sentence in the plea agreement. A defendant may
waive the right to appeal if that waiver is knowing and
intelligent. United States v. Blick, 408 F.3d 162, 169 (4th Cir.
2005). To determine whether a waiver is knowing and intelligent,
this court examines the background, experience, and conduct of the
defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). Generally, if the district court fully questions
a defendant regarding the waiver of her right to appeal during the
Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir.), cert. denied, 126 S. Ct. 461 (2005); United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). However, an appeal
waiver does not preclude challenges to a sentence on the ground
that it exceeds the statutory maximum or is based on a
constitutionally impermissible factor such as race, appeals from
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the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel, or claims concerning a violation
of the Sixth Amendment right to counsel in proceedings following
the guilty plea. Johnson, 410 F.3d at 151 (citations omitted).
The question of whether a defendant validly waived her right to
appeal is a question of law that this court reviews de novo.
Blick, 408 F.3d at 168.
Our review of the record leads us to conclude that Ryan
knowingly and voluntarily waived the right to appeal his sentence.
See Blick, 408 F.3d at 169. Moreover, the challenges Ryan raises
on appeal fall within the scope of the waiver.
Accordingly, we dismiss Ryan’s 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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