United States v. Michael Eck

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL F. ECK,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John S. Kaull,
Magistrate Judge. (1:12-cr-00086-IMK-JSK-1)
Submitted: March 28, 2013 Decided: April 1, 2013
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Andrew R. Cogar, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Michael F. Eck
pled guilty to two counts of willful failure to file tax
returns. In the plea agreement, Eck agreed to waive his right
to appeal “any sentence corresponding to a base offense level of
16 or lower under the Sentencing Guidelines.” The magistrate
judge * imposed concurrent 12-month sentences on each count, based
on the determination of an adjusted offense level of 13. On
appeal, Eck’s attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether the
guilty plea is valid and whether the sentence imposed is
reasonable. Eck filed a pro se brief, asserting that his plea
was coerced and that he was denied the right to argue the tax
loss amount at sentencing. The Government has moved to dismiss
Eck’s appeal based on the appellate waiver provision in his plea
agreement. We dismiss in part and affirm in part.
In the absence of a motion in the district court to
withdraw a guilty plea, this court’s review of the plea colloquy
is for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). After reviewing the plea agreement and the
*
Eck consented to the jurisdiction of a magistrate judge
pursuant to 28 U.S.C. § 636(c) (2006).
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transcript of the plea hearing, we conclude that the magistrate
judge fully complied with the requirements of Fed. R. Crim. P.
11 in accepting Eck’s guilty plea. Eck’s contention that he was
coerced into entering the plea is belied by his sworn statements
to the contrary during the Rule 11 hearing. See Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977).
Moreover, Eck’s argument in his pro se brief that he
was denied the right to argue the tax loss amount at sentencing—
a right preserved in his plea agreement—is belied by the record,
which shows that Eck presented evidence and argument at
sentencing in support of his claim of a lesser tax loss amount
than was stipulated in the plea agreement. We find no merit to
this claim.
We review de novo a defendant’s waiver of appellate
rights within a plea agreement. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). “A defendant may waive his right
to appeal if that waiver is the result of a knowing and
intelligent decision to forgo the right to appeal.” United
States v. Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005)
(internal quotation marks omitted). Our review of the record
and consideration of the totality of the circumstances, leads us
to conclude that Eck knowingly and voluntarily waived his right
to appeal his sentence. See United States v. General, 278 F.3d
389, 400 (4th Cir. 2002) (providing standard of review). We
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therefore grant in part the Government’s motion to dismiss and
dismiss the appeal of Eck’s sentence.
The waiver provision, however, does not preclude our
direct review of Eck’s conviction. In accordance with the
dictates of Anders, we have reviewed the entire record and have
found no meritorious issues that are outside the scope of the
appeal waiver. We therefore affirm the district court’s
judgment as to all issues not encompassed by Eck’s valid waiver
of his right to appeal his sentence.
This court requires that counsel inform Eck, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Eck 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 Eck. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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