United States v. George Delong, Jr. , 510 F. App'x 456 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0035n.06
No. 12-3282 FILED
Jan 07, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
GEORGE D. DELONG, JR., ) THE NORTHERN DISTRICT OF
) OHIO
Defendant-Appellant. )
Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
PER CURIAM. George D. DeLong, Jr., who is represented by counsel, appeals his judgment
of conviction and sentence.
DeLong pleaded guilty to exploitation of children, in violation of 18 U.S.C. § 2251(a), receipt
of a visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(2), and travel with the intent to engage in illicit sexual conduct, in violation of 18 U.S.C.
§ 2423(b). He was sentenced to serve a total of 180 months of imprisonment, followed by
supervised release for life. He was also ordered to pay a $300 special assessment. DeLong filed a
timely appeal.
DeLong’s counsel has moved to withdraw and has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). After reviewing the record, counsel concluded that there were no
meritorious grounds for appeal, but nonetheless discussed whether DeLong’s guilty plea is valid and
whether his sentence is reasonable. DeLong was notified of his right to respond to counsel’s Anders
brief. He filed a response in which he challenges the validity of his guilty plea, challenges the
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reasonableness of his sentence, questions counsel’s decision to file an Anders brief, and requests oral
argument. DeLong also requests the appointment of another attorney.
Counsel has filed an acceptable Anders brief. See Anders, 386 U.S. at 744. Counsel
indicated that he carefully reviewed the entire record, raised the only issues deemed arguable, and
concluded that neither those issues, nor any other issue present on the record, would support an
appeal.
Counsel suggests that we review the validity of DeLong’s guilty plea and the reasonableness
of his sentence. However, the record reveals that DeLong waived his right to appeal his convictions
and sentence.
“We review the question of whether a defendant waived his right to appeal his sentence in
a valid plea agreement de novo.” United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005).
A waiver provision in a plea agreement is binding as long as it was made knowingly and voluntarily.
United States v. Toth, 668 F.3d 374, 378 (6th Cir. 2012).
DeLong executed a plea agreement containing an appeal-waiver provision. That provision
indicates that DeLong “expressly and voluntarily waives” his right “to appeal the conviction or
sentence in this case.” DeLong retained the right to appeal a sentence above “the statutory
maximum,” a sentence greater than “any mandatory minimum sentence or the maximum of the
sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance
with the sentencing stipulations and computations in [the plea] agreement”, and the district court’s
“determination of [his] Criminal History Category.” DeLong also reserved the right to pursue
“claims of ineffective assistance of counsel or prosecutorial misconduct” on appeal.
During the plea hearing, the district court reviewed the appeal waiver provision contained
in the plea agreement. The district court inquired whether DeLong agreed with and understood each
portion of the appeal-waiver provision. DeLong responded affirmatively. He also stated that he read
the entire plea agreement, discussed it with his attorney, and initialed each page of the agreement.
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Nothing in the record suggests that DeLong’s assent to the appeal-waiver provision was unknowing
or involuntary. Under these circumstances, DeLong waived his right to appeal his convictions and
sentence upon execution of his plea agreement. See Toth, 668 F.3d at 378.
Although DeLong reserved the right to appeal his sentence if it exceeded the statutory
mandatory minimum, or the maximum sentence recommended either by statute or the advisory
sentencing guidelines, those circumstances are not present in this case. DeLong faced a statutory
mandatory minimum sentence of 180 months of imprisonment for the exploitation-of-children
conviction. See 18 U.S.C. § 2251(e). The statutory maximum sentences that DeLong faced were
thirty years of imprisonment for the convictions regarding the exploitation of a minor and travel with
the intent to engage in illicit sexual conduct, and twenty years of imprisonment for the conviction
regarding the receipt of a visual depiction of a minor engaged in sexually explicit conduct. See 18
U.S.C. §§ 2251(e), 2252(b)(1), and 2423(b). The maximum sentence DeLong faced under the
advisory sentencing guidelines was 188 months of imprisonment. Because DeLong was sentenced
to serve a total of 180 months of imprisonment, his sentence did not exceed the statutory mandatory
minimum, the statutory maximums, or the maximum sentence recommended by the advisory
sentencing guidelines.
In addition, DeLong reserved the right to challenge the district court’s criminal history
category determination. But because the district court determined that DeLong’s criminal history
category was I, the lowest level available, that determination does not present an appealable issue.
DeLong reserved the right to raise ineffective-assistance-of-counsel and prosecutorial-misconduct
claims on appeal and collateral review. A thorough review of the record reveals no basis for
pursuing these claims at this time. Thus, the appeal-waiver provision in the plea agreement is
enforceable and DeLong may not appeal his convictions and sentence. Because DeLong waived his
right to appeal his convictions and sentence, we need not consider the arguments that counsel and
DeLong raise regarding his guilty plea and sentence.
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Nevertheless, we have thoroughly reviewed the record in this case and discovered no error
warranting reversal of the district court’s judgment. Because our independent review of the record
confirms counsel’s conclusion that there are no issues of arguable merit present in DeLong’s appeal,
we grant counsel’s motion to withdraw, deny DeLong’s request for oral argument and motions for
appointment of counsel, and affirm the district court’s judgment.