United States v. Elisha Riggleman ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4433
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELISHA RIGGLEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:11-cr-00124-1)
Submitted: October 18, 2013 Decided: October 24, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Gregory J. Campbell, CAMPBELL LAW OFFICE, Charleston, West
Virginia, for Appellant. R. Booth Goodwin, II, United States
Attorney, Debbie H. Stevens, Special Assistant United States
Attorney, Beaver, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elisha Riggleman pled guilty pursuant to a plea
agreement to one count of threatening to kidnap and assault a
federal officer, in violation of 18 U.S.C.A. § 115(a)(1)(B)
(West 2000 & Supp. 2013). On appeal, he challenges the district
court’s decision not to give him credit for acceptance of
responsibility under the Sentencing Guidelines. He also
challenges the magistrate judge’s order denying his motions
seeking to disqualify the Special Assistant United States
Attorney. Riggleman also claims that the district court judge
was not neutral or impartial. We dismiss in part and affirm in
part.
As the Government notes, in his plea agreement,
Riggleman waived his right to appeal his sentence. We review
the validity of an appeal waiver de novo. United States v.
Manigan, 592 F.3d 621, 626 (4th Cir. 2010). Where the
Government seeks to enforce an appeal waiver, as it does in this
case, and did not breach its obligations under the plea
agreement, we will enforce the waiver if the defendant’s waiver
was knowing and intelligent and the issues raised on appeal fall
within the scope of the agreement. United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). To determine whether an
appeal waiver is knowingly and intelligently entered, we examine
the totality of the circumstances, including the defendant’s
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experience, conduct, educational background, and familiarity
with the agreement’s terms. United States v. General, 278 F.3d
389, 400 (4th Cir. 2002). “An appeal waiver ‘is not knowingly
or voluntarily made if the district court fails to specifically
question the defendant concerning the waiver provision of the
plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the
full significance of the waiver.’” United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005) (quoting United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992)).
Riggleman waived his right to “seek appellate review
of any sentence of imprisonment or fine imposed by the District
Court, or the manner in which the sentence was determined, on
any ground whatsoever including any ground set forth in 18
U.S.C. § 3742.” (Joint Appendix at 140). We note that the
Government fully complied with its obligations under the plea
agreement. Also, the district court specifically questioned
Riggleman about the written appellate waiver and confirmed that
he understood he was waiving his right to appeal by entering the
agreement. The terms of the waiver were “clear and
unmistakable.” See Blick, 408 F.3d at 169. Accordingly, we
will enforce the appeal waiver.
Riggleman’s challenge to the district court’s decision
not to give him credit for acceptance of responsibility is a
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challenge to the manner in which his sentence was determined.
Accordingly, because this issue is within the scope of the
enforceable appeal waiver we will not review it and dismiss the
appeal in part.
We will also not review Riggleman’s challenge to the
magistrate judge’s order denying his motions seeking to
disqualify the Special Assistant United States Attorney.
Federal Rules of Criminal Procedure 59(a) requires that a party
object to a magistrate judge’s determination on “any matter that
does not dispose of a charge or defense” within fourteen days
after being served with a copy of the written order or after the
oral order is stated on the record. Fed. R. Crim. P. 59(a).
“Failure to object in accordance with this rule waives a party's
right to review.” Id.Riggleman never appealed the magistrate judge’s ruling
to the district court. Accordingly, Riggleman has waived
appellate review of this issue. Id.; United States v. Schronce,
727 F.2d 91, 93–94 (4th Cir. 1984) (“We do not believe . . .
that the [Federal Magistrates] Act can be interpreted to permit
a party . . . to ignore his right to file objections with the
district court without imperiling his right to raise the
objections in the circuit court of appeals.”). Thus, we will
dismiss in part the appeal based on Riggleman’s failure to
object to the magistrate judge’s order.
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Riggleman also contends that the sentencing judge was
not neutral or impartial. Arguably, this issue falls outside
the scope of the appeal waiver. Nevertheless, there is nothing
in the record that supports Riggleman’s claim. Accordingly, we
affirm in part.
We affirm in part and dismiss in part the appeal from
the judgment of conviction. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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