United States v. Welsh , 316 F. App'x 222 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4735
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HOWARD WELSH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:04-cr-00148-RBS)
Submitted: October 23, 2008 Decided: November 25, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant. Robert Joseph Seidel, Jr., Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Welsh appeals his convictions and 240-month
sentence after pleading guilty to conspiracy to commit mail and
wire fraud, in violation of 18 U.S.C. § 317 (2000), mail fraud, in
violation of 18 U.S.C. § 1341 (2000), and two counts of wire fraud,
in violation of 18 U.S.C. § 1343 (2000). Counsel for Welsh filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he asserts that there are no meritorious issues for appeal,
but asks this court to review whether the district court erred in
its determination of the total restitution amount and whether Welsh
received ineffective assistance of counsel. Welsh filed a pro se
supplemental brief in which he raises over twenty claims of error
regarding his extradition and indictment, his convictions and
sentence, and the assistance and advice he received from counsel.
The Government has filed a motion to dismiss based upon the waiver
of appellate rights in Welsh’s plea agreement.
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990) (waiver upheld as
voluntarily and intelligently made). Whether a defendant has
waived his right to appeal is an issue of law subject to de novo
review. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
A waiver will preclude appeal of a specific issue if the record
establishes that the waiver is valid and that the issue is within
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the scope of that waiver. United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994). The validity of a waiver depends on
whether the defendant knowingly and intelligently agreed to waive
the right to appeal. Id. at 732. This determination is based on
the totality of the circumstances, including the adequacy of the
plea colloquy and the experience and conduct of the defendant.
United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).
In his pro se supplemental brief, Welsh claims that his
appellate waiver was invalid and that he entered his guilty plea
only because he received ineffective assistance from his trial
counsel. Neither contention warrants relief. First, there is no
indication in the record that counsel was ineffective, and Welsh
fails to identify any such evidence. Accordingly, because the
record does not conclusively establish ineffective assistance,
Welsh’s assertions that counsel was ineffective in numerous
respects, including his claim that counsel advised him to plead
guilty without properly investigating a number of available
defenses, must be raised in a 28 U.S.C. § 2255 (2000) motion rather
than on direct appeal. See United States v. King, 119 F.3d 290,
295 (4th Cir. 1997); United States v. DeFusco, 949 F.2d 114, 120-21
(4th Cir. 1991).
Nor is there evidence in the record indicating that Welsh
did not knowingly, intelligently, and voluntarily enter into his
plea and agree to waive his right to appeal. During the plea
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hearing, the district court properly informed Welsh of the rights
he was forfeiting and the nature of the charges and penalties he
faced, determined that Welsh was competent and entered his plea
voluntarily, and found there was a sufficient factual basis for the
plea. Furthermore, Welsh stated that he had fully discussed the
case and all possible defenses with his attorney, and that he was
satisfied with his representation. Finally, the district court
noted the appeal waiver contained in his plea agreement. Despite
Welsh’s present contention that his plea was involuntary, his sworn
statements at the Rule 11 hearing are presumed to be true. See
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Accordingly,
because there is no evidence that Welsh’s plea was not knowing and
voluntary, we find that the appeal waiver included in his plea
agreement is valid. See Blick, 408 F.3d at 169.
Welsh next raises a series of jurisdictional claims
regarding his case, contending that the district court was not an
Article III court, that he was tried under martial law, and that
Title 18 of the United States Code is void. While claims regarding
jurisdiction are not barred by an appellate waiver, see United
States v. Cotton, 535 U.S. 625, 630 (2002), these claims are
patently frivolous. Welsh also contends that his extradition
amounted to a “kidnaping” in violation of the Vienna Convention and
international law, invoking the doctrine of specialty and alleging
that his extradition was based upon fraud. However, even assuming
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that the Vienna Convention or the principle of speciality was
violated in this case and that Welsh has standing to raise such a
violation, he has waived review of these claims by failing to raise
them before the district court. See United States v. Davis, 954
F.2d 182, 186-87 (4th Cir. 1992); see also United States v. Al-
Hamdi, 356 F.3d 564, 574 n.13 (4th Cir. 2004) (no indication that
Vienna Convention creates individual rights for criminal
defendants). Accordingly, such claims are not reviewable on
appeal.
Finally, in his Anders and pro se briefs, Welsh contends
there were numerous errors relating to his sentence and restitution
order. However, these claims are squarely within the scope of the
appellate waiver,* as Welsh waived the right to appeal “any
sentence within the statutory maximum . . . or the manner in which
that sentence was determined . . . on any ground whatsoever.” See
Attar, 38 F.3d at 731-33.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
Accordingly, we grant the Government’s motion to dismiss the appeal
*
While Welsh contends that restitution was impracticable due
to the large number of victims and that the total amount listed in
his restitution order was erroneously calculated, he has made no
showing that the imposition of restitution in this case was illegal
or unauthorized. See United States v. Broughton-Jones, 71 F.3d
1143, 1146-47 (4th Cir. 1995). Accordingly, the restitution order
falls within the scope of Welsh’s appeal waiver. See United
States v. Cohen, 459 F.3d 490, 497 (4th Cir. 2006).
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as to those claims attacking Welsh’s sentence and restitution
order, which are barred by the appeal waiver, and deny the motion
as to the remaining claims. We affirm the district court’s
judgment to the extent that Welsh raises claims outside the scope
of the waiver provision. Furthermore, while we grant Welsh’s
motion to exceed the applicable page limitation for pro se
supplemental briefs, we deny all other pending motions.
This court requires counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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 IN PART;
AFFIRMED IN PART
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