United States v. Mirabile , 239 F. App'x 815 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4780
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CARMELLO MIRABILE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-03-374-L)
Submitted: July 11, 2007 Decided: July 20, 2007
Before WILKINSON and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Martin J.
Clarke, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Mirabile pled guilty to one count of conspiracy to
distribute a controlled substance, 21 U.S.C. § 846 (2000), and was
sentenced to eighty-seven months imprisonment. Mirabile appeals,
claiming that the sentence imposed violates the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). The
Government asserts that Mirabile waived his right to appeal the
sentence by executing a valid and enforceable plea agreement
containing a waiver of appellate rights. We agree and dismiss the
appeal for that reason.
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); United States v. Broughton-Jones, 71 F.3d
1143, 1146 (4th Cir. 1995) (determining whether a waiver is knowing
and intelligent by examining the background, experience, and
conduct of the defendant). 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. 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). The question of
whether a defendant validly waived his right to appeal is a
question of law that this court reviews de novo. Blick, 408 F.3d at
168.
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We find that, based on our review of the record, the
district court fully complied with the requirements of Rule 11
during the plea colloquy and that Mirabile’s waiver of appellate
rights was knowing and intelligent. Moreover, a plea agreement’s
appellate waiver accepted prior to Booker is not invalidated by the
Booker decision. Blick, 408 F.3d at 170-73; see also Johnson, 410
F.3d at 150-55.
We therefore dismiss Mirabile’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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