United States v. Connor

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-41075
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK D. CONNOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:96-CR-6-1
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December 9, 1997
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Mark D. Connor appeals his conviction and sentence in a
guilty-plea conviction for one count of failure to pay income
tax, a violation of 26 U.S.C. § 7201. He argues that his guilty
plea was involuntarily given because the prosecutor refused to
accept any plea other than guilty, that the district court erred
in failing to grant or enforce his discovery motions, and that
venue was improper. He further argues that the district court
erred in failing to consider or grant a downward departure
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 96-41075
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pursuant to U.S.S.G. § 5K2.10 or § 5K2.11, and that it was error
to calculate base tax loss based on years outside any applicable
statute of limitations for conviction.
Having carefully reviewed the record and the parties briefs,
we find that Connor voluntarily and intelligently agreed,
pursuant to a plea agreement, to plead guilty. See United States
v. Henry, 113 F.3d 37, 40 (5th Cir. 1997). An unconditional
guilty plea, made knowingly, voluntarily, and with the benefit of
competent counsel, functionally waives all non-jurisdictional
defects that occurred during pre-plea proceedings. United States
v. Jackson, 659 F.2d 73 (5th Cir. 1981); United States v. Taylor,
814 F.2d 172, 174 (5th Cir. 1987). Moreover, in the plea
agreement, Connor voluntarily agreed to waive his statutory right
to appeal, as well as associated constitutional rights, thus he
has waived his right to appeal any errors regarding discovery or
venue. Accordingly those issues are DISMISSED. See United
States v. Melancon, 972 F.2d 566, 567-86 (5th Cir. 1992); United
States v. Price, 95 F.3d 364, 369 (5th Cir. 1996).
With regards to sentencing issues, the application of
departures pursuant to U.S.S.G. §§ 5K2.10 and 5K2.11 would have
been inappropriate as the offense of conviction was a non-violent
offense based on the defendant’s belief that the government’s
policies were misguided, therefore it was not plain error for the
district court not to consider them. See U.S.S.G. § 5K2.10,
§ 5K2.11. See also United States v. Olano, 507 U.S. 725, 732-36
No. 96-41075
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(1993); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.
1990).
In determining the total tax loss attributable to the
offense, all conduct violating the tax laws should be considered
where it is part of the same course of conduct showing a
continuing pattern of violations of the tax laws. U.S.S.G.
§ 2T1.1, comment. (n.2). As there is no separate statute of
limitations under the Sentencing Guidelines beyond which relevant
conduct becomes irrelevant, it was not plain error for the
district court to calculate tax loss for sentencing purposes
based on Connor’s failure to pay taxes for the years 1984-1994,
inclusive. See United States v. Vital, 68 F.3d 114, 118 (5th
Cir. 1995); United States v. Powell, 124 F.3d 655, 664 (5th Cir.
1997).
AFFIRMED.