United States v. Mims , 289 F. App'x 645 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN AARON MIMS, a/k/a Sean Aaron Mimms,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00150-REP)
Submitted: August 14, 2008 Decided: August 19, 2008
Before MICHAEL, Circuit Judge, and WILKINS and HAMILTON, Senior
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Craig W. Sampson, Sr., BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Samuel Eugene Fishel, IV, Special Assistant United
States Attorney, Elizabeth Wu, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Aaron Mims pled guilty to two counts of possession
of child pornography, 18 U.S.C.A. § 2252A(a)(5)(B) (West 2000
& Supp. 2008), and was sentenced to the statutory maximum term of
120 months on each count, with the sentences partially concurrent
and partially consecutive, for a total sentence of 168 months
imprisonment. Under the terms of his plea agreement, Mims waived
his right to appeal any sentence within the statutory maximum “on
the grounds set forth in Title 18, United States Code, Section 3742
or on any ground whatsoever.” Mims now seeks to contest the
calculation of his advisory guideline range, challenging a five-
level enhancement under U.S. Sentencing Guidelines Manual
§ 2G2.2(b)(5) (2006), on the ground that the conduct underlying the
enhancement was a separate crime. The government has moved to
dismiss the appeal based on the waiver of appeal rights.
Mims concedes that he waived his right to appeal and that
the waiver was knowing and voluntary. See United States v. Brown,
232 F.3d 399, 402-06 (4th Cir. 2000). He contends that the issue
he seeks to raise is not within the scope of the waiver. We
disagree.
We therefore grant the government’s motion to dismiss and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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